Bloomberg News

Secret Vote Opens Health Law Review Shaping Court Legacy

March 29, 2012

Supreme Court Associate Justice Antonin Scalia, left, and Chief Justice John Roberts in the East Conference Room at the Supreme Court building in Washington. Photographer: Chip Somodevilla/Getty Images

Supreme Court Associate Justice Antonin Scalia, left, and Chief Justice John Roberts in the East Conference Room at the Supreme Court building in Washington. Photographer: Chip Somodevilla/Getty Images

U.S. Chief Justice John Roberts will probably ask each of his eight Supreme Court colleagues gathered in an oak-paneled room tomorrow where they stand on the law that would expand health insurance to at least 30 million Americans and affect one-sixth of the economy.

The secret, preliminary vote, following the court’s standard practice, will kick off three months of behind-the- scenes deliberations on the fate of the law. The outcome will shape Roberts’s own legacy, influence President Barack Obama’s re-election prospects and potentially deepen the partisan gulf that is already dividing the country.

“This is the defining case for this term and quite possibly the entire Roberts chief justiceship if they’re going to strike it down,” said Sanford Levinson, a University of Texas law professor.

Almost six and a half hours of argument over the past three days cast doubt on the survival of the law’s centerpiece requirement that individuals get insurance. The hearings made clear the justices are splitting along ideological lines, much like a Democratic-controlled Congress was when it enacted the law in 2010 without a single Republican vote.

The court’s decision will mark the first time it has ruled on a president’s biggest legislative accomplishment in the middle of his re-election campaign. The measure is being challenged by 26 states and a business trade group as exceeding Congress’s constitutional powers.

‘Breathtaking’ Moment

The outcome will hinge on Roberts and Justice Anthony Kennedy, said Susan Low Bloch, a constitutional law professor at Georgetown University Law Center in Washington.

During arguments over the insurance requirement, both justices trained the bulk of their questions on U.S. Solicitor General Donald Verrilli, the Obama administration lawyer who defended the law.

Roberts directed three-quarters of his approximately 20 questions to Verrilli during that two-hour argument. Roberts said the health plan would “require people who are never going to need pediatric or maternity services to participate in that market.”

Kennedy said the law “changes the relationship of the federal government to the individual in a very fundamental way” by forcing people to buy a product.

“It was breathtaking when Kennedy expressed as much skepticism as he did at the government’s individual mandate,” said Ilya Shapiro, an opponent of the law and a senior fellow in constitutional studies at the Washington-based Cato Institute, which urges smaller government. “I almost began fist-pumping.”

Joining Forces

Should they conclude that the insurance requirement is unconstitutional, Roberts and Kennedy would probably join three other Republican appointees -- Antonin Scalia, Clarence Thomas and Samuel Alito -- in a 5-4 majority. The court’s four Democratic appointees all suggested they would vote to uphold the law.

A decision that the insurance requirement is unconstitutional would require the justices to decide whether to overturn some or all of the rest of the law as well. During arguments yesterday, the justices suggested they would have to invalidate provisions that require insurers to cover people with pre-existing medical conditions.

The justices were divided on whether to go further and throw out the entire health-care law. The court’s Democratic appointees urged a limited ruling, and the Republican justices offered varying levels of support for toppling all provisions.

Not Over Yet

Supreme Court arguments can be deceiving. In 2009, a hearing suggested the court was poised to strike down a central provision in the Voting Rights Act. In that argument, Kennedy pointed to a “great disparity” in the way the act treated different states and said a government lawyer defending the law bore “a very substantial burden.”

Three months later, the court produced a compromise, an 8-1 decision that avoided ruling on the constitutionality of the Voting Rights Act.

Still, the prospect of a similar compromise in the health- care case may have evaporated during the first day of argument, when the justices suggested they aren’t inclined to postpone a decision until the law goes into full effect.

The nine justices should have a clear sense of each other’s views tomorrow morning when, by tradition, they will meet in their private conference room in a session closed even to their law clerks.

Sitting in their assigned seats -- with the chief justice at the head and the newest justice, Elena Kagan, by the door in case anyone knocks with a message or a delivery -- they will discuss the case and then vote in order of seniority, with Roberts going first.

Only the Beginning

That meeting may be just the beginning of the wrangling. The justices at times shift their positions after they take that initial vote. Kennedy, in particular, “has been known to change his mind” after reading opinion drafts, said Michael Dorf, a Cornell University law professor who clerked for the justice.

From the public’s standpoint, the case will enter a quiet period until the justices release their decision, probably at the end of June.

That announcement will mark Roberts’s biggest moment since President George W. Bush appointed him chief justice in 2005.

Roberts said at his Senate confirmation hearing that year that he prefers to be known “as a modest judge,” a job he compared with being a baseball umpire calling balls and strikes.

Consensus Building

Democrats have complained that Roberts hasn’t proven to be a consensus builder, joining 5-4 conservative majorities in major cases involving school integration, abortion, and gun rights.

“More than any other case he’s faced so far, the Affordable Care Act litigation will define John Roberts’s tenure and legacy,” said Doug Kendall, president of the Washington- based Constitutional Accountability Center, which supports the law.

A ruling striking down all or part of the law would establish the Roberts court as a bulwark against perceived overreaching by Obama and congressional Democrats. It would also trigger accusations that the court was engaging in “judicial activism.”

The justices themselves debated that notion yesterday while considering how much of the health-care law should survive if the insurance mandate is found to be unconstitutional.

Justice Sonia Sotomayor said throwing out an entire law when only one part has been ruled unconstitutional is “sort of taking onto the court more power than one, I think, would want.”

‘New Regime’

Kennedy countered that judicial restraint might call for rejecting the whole statute if the insurance requirement is voided. Cutting out just the coverage mandate would create “a new regime that Congress did not provide for, did not consider,” Kennedy said. “That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than striking the whole.”

A decision striking down the mandate would also mark a new legal path for the Roberts court, which has never before considered the limits of Congress’s power over interstate commerce. Roberts’s predecessor and former boss, the late Chief Justice William Rehnquist, helped revive the idea that Congress’s commerce power has limits.

Limiting Congressional Power

“Nobody really realized that the Roberts court majority is as in love with federalism as the Rehnquist court before it,” said Tom Goldstein, an appellate lawyer whose Scotusblog website, sponsored by Bloomberg Law, tracks the court. “It looks like they may be very serious about recognizing limits on Congress’s power.”

The public won’t get any more hints until the end of June.

“The Supreme Court is very good at keeping things under wraps,” said Adam Winkler, a constitutional law professor at the University of California at Los Angeles School of Law. “The clerks won’t talk, the justices won’t talk, no one will talk. We are all going to wait and see.”

To contact the reporters on this story: Greg Stohr in Washington at gstohr@bloomberg.net; Seth Stern in Washington at sstern14@bloomberg.net.

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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