by Damon Root
At 2:24 p.m. that afternoon, the case was submitted. The fate of the Patient Protection and Affordable Care Act now rested in the hands of the U.S. Supreme Court.
The Bully Pulpit
In 1935, when President Franklin Roosevelt faced off against the Supreme Court over the constitutionality of the New Deal, he waited until four days after the Court invalidated his National Industrial Recovery Act before launching his famous attack on the “horse and buggy”66 origins of the Commerce Clause. President Barack Obama, by contrast, could barely wait a week after the conclusion of oral arguments before lecturing the Supreme Court about its treatment of his health care law.
Speaking to the press on April 2, Obama said he was confident “the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of Congress.” Moreover, Obama added, “for years, what we’ve heard is the biggest problem on the bench was judicial activism, or a lack of judicial restraint. An unelected group of people would somehow overturn a duly constituted and passed law. Well,” the president said, “this is a good example. And I’m pretty confident this court will recognize that and not take this step.”67
The president’s allies soon picked up on the theme. “I trust that [John Roberts] will be a chief justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch,” declared Democratic Senator Patrick Leahy of Vermont several weeks later. “It would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.”68
Writing in The New Republic on May 4, legal affairs writer Jeffrey Rosen described the pending health care decision as “John Roberts’s moment of truth.” The chief justice “has to decide what kind of legal conservatism he wants to embrace,” Rosen wrote. “Of course, if the Roberts Court strikes down health care reform by a 5–4 vote, then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure.”69
In light of the chief justice’s ultimate decision to uphold the health care law, the timing of these statements now appears suggestive. Was there a lobbying effort by liberal politicians and pundits designed to influence Roberts’s opinion? Many conservatives thought so at the time. “It is cheeky of Rosen, a liberal, to lecture Roberts about jurisprudential conservatism,” wrote Washington Post columnist George Will on May 25. “Such clumsy attempts to bend the chief justice are apt to reveal his spine of steel.”70
On July 1, several days after the health care decision was released, Jan Crawford of CBS News, a veteran legal journalist and author of a respected book on the Supreme Court, reported that something had indeed been going on behind closed courtroom doors at that time. “Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law,” she reported, “but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to sources with specific knowledge of the deliberations.” Why did Roberts change his vote? Crawford had no definitive answer from her sources. But she did note that “as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.”71
For his part, Rosen has consistently denied participating in any sort of lobbying campaign, concerted or otherwise. “The idea that I was trying to ‘intimidate’ or ‘bend’ the Chief Justice came as a surprise to me,” he wrote. “The justices have already voted in the health care case and are hardly influenced, in any event, by legal punditry.”72
“Turning First to the Commerce Clause”
“I have the announcement in case number 11–393, National Federation of Independent Business v. Sebelius, and the related cases,”73 Chief Justice Roberts announced on the morning of June 28, 2012, the last day of the Court’s 2011–2012 term. After three months of waiting, the health care decision had finally arrived.
“In these cases,” Roberts began, the packed courtroom fixed on his every word, “we consider claims that Congress lacked constitutional power to enact two provisions of the Patient Protection and Affordable Care Act of 2010.” While most Americans may consider “affirmative restrictions such as contained in the Bill of Rights” to be the foremost “limits on government power,” Roberts said, those restrictions only “come into play” when “the government possesses authority to act in the first place. And in our federal system, the national government possesses only those limited powers the Constitution assigns.”
That opening description sounded very promising to the legal challengers. What came next sounded even better. “The question is whether Congress has the constitutional power to enact the individual mandate,” Roberts explained. According to the federal government, it does have such power. “Turning first to the Commerce Clause,” Roberts said, it turns out that Congress does not. “Congress has never before attempted to use the commerce power to order individuals not engaged in commerce to buy an unwanted product,” he observed. “And nothing in the text of the Constitution suggests it can.”
It was the very argument championed by Randy Barnett and his libertarian and conservative allies over the previous two years. Congress may regulate economic activity, they said, but Congress may not regulate inactivity. Now the chief justice of the United States was making the same point. “The Commerce Clause is not a general license to regulate an individual from cradle to grave simply because he will predictably engage in particular transactions,” Roberts declared. In the 2010 Citizens United case, Roberts had struck down an act of Congress for exceeding the limits of the Constitution. To the horror of the Obama administration and its allies, he now appeared to be engaged in a repeat performance. But the show was not over yet. In fact, the final act had just begun.
“It Is Not Our Job”
“That brings us to the Government’s second argument,” Roberts continued, “that the mandate may be upheld under Congress’ power to lay and collect taxes.” According to this view, he explained, the mandate is not actually a command to purchase health insurance, but is instead only a tax levied on those who do not have health insurance. “Under that theory, the mandate makes going without insurance just another thing the government taxes like buying gasoline or earning income,” Roberts said. Then came the kicker. “Under our precedent, if there are two possible interpretations of a statute and one of those interpretations violates the Constitution, the courts should adopt the interpretation that allows the statute to be upheld.”
Roberts had just telegraphed the outcome of the case. In his fifty-nine-page opinion, he would spell out the reasoning in detail. “The most straightforward reading of the mandate is that it commands individuals to purchase insurance,” the chief justice wrote. “But for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.”74
Among that precedent was a 1927 opinion by Justice Oliver Wendell Holmes, which Roberts proceeded to quote. “As between two possible interpretations of a statute,” Holmes wrote, “by one of which it would be unconstitutional and the other valid, our plain duty is to adopt that which will save the Act.”75 Following Holmes’s instructions, Roberts did his “duty” and saved the Affordable Care Act. “The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution,” Roberts wrote. “Granting the Act the full measure of deference owed to federal statutes, it can so be read.”76 Obamacare had survived.
Roberts would spend just over twenty minutes that morning summarizing his opinion from the bench, but he saved perhaps the most important and revealing statement of all until the very last minute. And once
again, the chief justice of the United States turned to the words of Justice Oliver Wendell Holmes for support. Today’s ruling, Roberts declared, has nothing to do with the Court’s personal views as to the wisdom or folly of the health care law. “That judgment is for the people acting through their representatives,” he said. Then, his voice rising in emphasis, the chief justice reached his conclusion. “It is not our job,” Roberts declared, reading directly from his opinion, “to save the people from the consequences of their political choices.”77
Nearly a century earlier, Justice Holmes had first given expression to that very sentiment. “If my fellow citizens want to go to Hell I will help them,” Holmes wrote about his role as a judge. “It’s my job.”78
Epilogue
No Peace
In late April 2012, barely a month after the Supreme Court finished hearing oral arguments in the health care case, Yale Law School hosted a weekend conference featuring a group of distinguished legal scholars debating various forms of constitutional interpretation. Among the participants was Stanford law professor Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit and a respected legal conservative. McConnell, it turned out, was none too thrilled about the prospects of a conservative Supreme Court striking down the Affordable Care Act. In fact, he compared the possibility to a feat of right-wing judicial activism.
“Democracy still seems to me to be a worthy project,” McConnell told the assembled legal experts. “I haven’t quite given up on it.” But he also admitted to seeing little cause for optimism. The way things are going now, he said, “everything is thrown into the courts,” ultimately leaving all political decisions in the hands of unelected judges. “It’s quite evident,” McConnell concluded, “that, on the right side of the legal world, the ascendancy is people like Randy Barnett who want a more muscular judiciary.”1
Was he right to worry? Just two months later, after all, Chief Justice John Roberts did what McConnell wanted and left the fate of health care reform in the hands of the voters and their elected representatives. It was the biggest Supreme Court case in decades, and the outcome ultimately hinged on the deferential philosophy of Justice Oliver Wendell Holmes. Perhaps the fear of the libertarian ascendancy was much ado about nothing.
But then again, perhaps McConnell was right to worry. District of Columbia v. Heller, the landmark 2008 ruling that recognized the Second Amendment as a core individual right, was certainly a libertarian win premised on the strenuous flexing of judicial muscle. So was the 2010 gun rights victory in McDonald v. Chicago, which applied the Second Amendment right to keep and bear arms against the states. Going forward, all firearm regulations must now contend with these forceful Supreme Court precedents. Like it or not, the Supreme Court has entered the political thicket of gun control.
Nor are the libertarian lawyers at the Institute for Justice showing any signs of fatigue in their long campaign to spark “judicial action”2 on behalf of property rights and economic liberty. In fact, they’re building momentum. In March 2013, for example, IJ scored another bull’s-eye against the regulatory state when its lawyers convinced the U.S. Court of Appeals for the Fifth Circuit to strike down a Louisiana law that forbade a group of Benedictine monks from selling handmade wooden caskets without a license. “The great deference due state economic regulation does not demand judicial blindness,” the Fifth Circuit declared, “nor does it require courts to accept nonsensical explanations for regulations.”3 With every such win, the Institute for Justice chips away further at the Progressive-era edifice upholding judicial deference and the rational-basis test.
As for the outcome of the 2012 health care case, the followers of Justice Holmes should not be too quick to drop their guards. Although it’s true that Roberts saved the health care law, he also accepted the Commerce Clause arguments put forward by Barnett and the other legal challengers, thereby joining with the four dissenters—Scalia, Kennedy, Thomas, and Alito—to recognize the first new limits on congressional power since the stalled “federalism revolution” of United States v. Lopez, which invalidated the Gun-Free School Zones Act, and United States v. Morrison, which struck down a portion of the Violence Against Women Act. It remains to be seen how this aspect of the health care ruling will play out in future cases.
Finally, while Randy Barnett and his libertarian and conservative allies might have failed to nullify the Affordable Care Act, they only missed by a single vote. The next major test of government power may well produce a very different result. The long war for control of the Supreme Court rages on.
Acknowledgments
Warm thanks to my agent, Don Fehr, and to my editor, Karen Wolny, whose encouragement and wise counsel made this book possible.
Small portions of this work first appeared, in different form, in the pages of Reason magazine and online at Reason.com. I’m grateful to the editors who brought those pieces to life, particularly Nick Gillespie, Katherine Mangu-Ward, Jesse Walker, and Matt Welch. Thanks also to my other Reason colleagues, including Mike Alissi, Ronald Bailey, Meredith Bragg, Barb Burch, Brian Doherty, Jim Epstein, Matthew Feeney, Anthony Fisher, Jon Graff, Ed Krayewski, Chris Mitchell, Julian Morris, David Nott, Melissa Palmer, Scott Shackford, Peter Suderman, Jacob Sullum, Josh Swain, Mary Toledo, and J.D. Tuccille. And one more round of thanks to Nick for giving me my first real job in journalism.
As I look back now, I realize this book’s origins are to be found in the classroom of Professor Herbert Sloan of the Barnard College History Department at Columbia University. His wonderful course “The Constitution in Historical Perspective” opened my eyes to some 200 years of landmark Supreme Court decisions. I remain in his debt.
My family is and always has been a deep source of friendship and support, and I lack the words to adequately express my love and gratitude to Mom, Amy, Alex, and Dan. Thanks also to my new family: Trish, Rick, Ellen, Charlotte, Alexander, Keith, Sara, Bill, Tom, and Maria. And very special thanks to my late, much beloved cat Orpheus, who always kept me company while I worked. I miss you.
Finally, to Allison, my partner in crime. None of this would be possible without you at my side.
Select Bibliography
Arkes, Hadley. The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights. Princeton: Princeton University Press, 1994.
Barnett, Randy E. “Kennedy’s Libertarian Revolution.” National Review Online, July 10, 2003. http://www.nationalreview.com/articles/207453/kennedys-libertarian-revolution/randy-barnett.
Barnett, Randy E. Restoring the Lost Constitution: The Presumption of Liberty. Princeton: Princeton University Press, 2004.
Bean, Jonathan, ed. Race and Liberty in America: The Essential Reader. Lexington: University Press of Kentucky, 2009.
Beito, David T., and Linda Royster Beito. “Gold Democrats and the Decline of Classical Liberalism, 1896–1900.” The Independent Review, vol. 4, no. 4, Spring 2000.
Benedict, Jeff. Little Pink House: A True Story of Defiance and Courage. New York: Grand Central Publishing, 2009.
Bernstein, David E. “Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective.” Vanderbilt Law Review 51, May 1998.
Bernstein, David E. Rehabilitating Lochner: Defending Individual Rights from Progressive Reform. Chicago: University of Chicago Press, 2011.
Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. 2nd ed. New Haven: Yale University Press, 1986.
Bickel, Alexander M., and Benno C. Schmidt Jr. History of the Supreme Court of the United States. Vol. 9, The Judiciary and Responsible Government, 1910–1921. New York: Cambridge University Press, 2007.
Bishop, Joseph Bucklin, ed. Theodore Roosevelt and His Time: Shown in His Own Letters. Vol. 2. New York: Charles Scribner’s Son’s, 1920.
Black, Hugo Lafayette. A Constitutional Faith. New
York: Alfred A. Knopf, 1968.
Blackman, Josh. Unprecedented: The Constitutional Challenge to Obamacare. New York: Public Affairs, 2013.
Bolick, Clint. Changing Course: Civil Rights at the Crossroads. New Brunswick, N.J.: Transaction Books, 1988.
Bolick, Clint. Unfinished Business: A Civil Rights Strategy for America’s Third Century. San Francisco: Pacific Research Institute for Public Policy, 1990.
Bork, Robert H. “Neutral Principles and Some First Amendment Problems.” Indiana Law Journal 47, 1971.
Bork, Robert H. The Tempting of America: The Political Seduction of the Law. New York: Touchstone, 1991.
Calhoun, John C. John C. Calhoun: Selected Speeches and Writings. Edited by H. Lee Cheek Jr. New York: Regnery, 2003.
Coke, Sir Edward. The Selected Writings and Speeches of Sir Edward Coke. 2 vols. Edited by Steve Sheppard. Indianapolis: Liberty Fund, 2003.
Coyle, Marcia. The Roberts Court: The Struggle for the Constitution. New York: Simon & Schuster, 2013.
Crawford, Jan. “Roberts Switched Views to Uphold Health Care Law.” CBS News, July 2, 2012. http://www.cbsnews.com/news/roberts-switched-views-to-uphold-health-care-law/.
Croly, Herbert. Progressive Democracy. New York: Macmillan, 1914.
Curtis, Michael Kent. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham, N.C.: Duke University Press, 1986.
Davidson, Alan, ed. The Oxford Companion to Food. New York: Oxford University Press, 1999.
Doherty, Brian. Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement. New York: Public Affairs, 2007.
Douglass, Frederick. Frederick Douglass: Selected Speeches and Writings, Edited by Philip S. Foner. Chicago: Lawrence Hill Books, 1999.
Douglass, Frederick. My Bondage and My Freedom. New York: Penguin Books, 2003. First published in 1855 by Miller, Orton & Mulligan.