The Roberts Court: The Struggle for the Constitution (46 page)

The 2010–11 term was, in a sense, a term overshadowed by anticipation for those who closely followed the Court: anticipation of health care’s arrival. The term had barely begun that October when a federal district judge in Michigan issued the first decision in one of four key challenges:
Thomas More Law Center v. Obama
. Judge George Steeh, a Clinton appointee, upheld the law. In November, one of the two Virginia challenges was decided—
Liberty University v. Geithner
—another victory for the Obama administration. That was followed in December and January 2011 by two defeats:
Virginia v. Sebelius
and
State of Florida v. U.S. Department of Health and Human Services
, respectively.

From day one, the health care law was a politically charged issue, but it became even more so in the public’s mind because of the political pedigree of the four district court judges who ruled between October and January. Two Democratic-appointed judges had upheld the law, and two Republican-appointed judges had struck it down. Appeals to the next level—federal appellate courts—were inevitable, although Virginia attorney general Ken Cuccinelli tried (unsuccessfully) to leapfrog
the pack by going directly to the Supreme Court. The justices would wait for the appeals court rulings.

All bets were still on the Florida challenge, brought by the Republican attorneys general (AGs), as the vehicle for Supreme Court review. Now that the district courts had ruled and appeals were planned, the Obama administration and the state AGs decided it was time to bring in appellate specialists in preparation for the ultimate showdown in the Supreme Court.

Kagan’s principal deputy, Neal Katyal, had become acting solicitor general. Obama had nominated Donald Verrilli Jr., a veteran appellate lawyer who had been monitoring the health care litigation while in the White House Counsel’s Office, to be the new solicitor general, but his confirmation was months away. Attorney General Eric Holder asked Katyal to handle the appeals court cases.

Florida attorney general Bill McCollum, who had launched the AG challenge, also had left office for what would be an unsuccessful run for governor. His Republican successor, Pam Bondi, took control of the litigation. When the state AGs initially filed their health care lawsuit, they had been joined by the National Federation of Independent Business, but that organization was preparing to split off and continue with its own lawyer, Michael Carvin of Jones Day, a veteran of the Reagan Justice Department who specializes in constitutional, civil rights, and civil litigation against the government. Carvin, at the time, also was handling a lawsuit challenging the heart of the Voting Rights Act of 1965, a suit that was expected to go eventually to the Supreme Court.

Two weeks after winning in the district court, Bondi and her legal team flew from Tallahassee to Washington, D.C., to interview potential lawyers who could represent the state AGs in the appeals court and eventually the Supreme Court. She was about to engage in a familiar ritual known as the “beauty contest,” in which appellate and Supreme Court practitioners make their arguments as to why they should be hired for a particular case.

Bondi, with an eye on the Supreme Court, had three of the nation’s top Supreme Court practitioners on her list: Miguel Estrada of Gibson, Dunn & Crutcher, a Republican and Federalist Society favorite; Gregory Garre, head of the appellate and Supreme Court practice at Latham & Watkins and a former George W. Bush administration solicitor general; and his predecessor, Paul Clement of the Bancroft law firm, who had argued the Seattle-Louisville school cases and the District of Columbia gun case for the Bush administration. Estrada’s partner, Theodore Olson, perhaps the dean of Supreme Court practitioners, would have been at the top of anyone’s wish list, but some state AGs deemed Olson unacceptable because he, along with David Boies, who represented Al Gore in
Bush v. Gore
, was challenging California’s ban on same-sex marriage.

Bondi met separately with each of the lawyers in a conference room at Cadwalader, Wickersham & Taft where her brother practiced law. She and her team settled on Clement, whom they found passionate, humble, brilliant, and—well—affordable. Reportedly for a flat rate of $250,000, they would be getting a lawyer considered by many to be the premier Supreme Court advocate of his generation. At forty-five, he had argued more than fifty cases before the justices, and since leaving government service, he had become the singular choice of conservatives to handle their hot-button causes. Clement was representing House GOP leaders in defense of the federal Defense of Marriage Act; the state of Arizona in defending its tough anti-immigration law; Texas, whose congressional redistricting plan was challenged as discriminating against Latinos; and South Carolina, whose voter identification law faced a discrimination challenge by the Obama administration.

With Katyal and Clement in place for the next round in this constitutional power struggle, both sides faced decisions about their legal arguments that would affect the case when the Supreme Court became involved. The government’s Anti-Injunction Act argument, which would have blocked any challenges to the health care law until 2015, had been a loser in the district courts. Despite that lack of success, some
administration officials wanted to continue to make the argument because it would put off a decision on the law’s constitutionality until after the November presidential election. On the other hand, the Internal Revenue Service was spending millions of dollars in preparation for implementing the penalty for not having health insurance. The Department of Health and Human Services was moving forward with creating health insurance exchanges. And the insurance community was implementing some of the law now and planning to implement other parts later, and it worried about its losses if the process were halted. There were strong policy reasons for getting an answer about the health care law as soon as possible. The Anti-Injunction Act itself and how it applied to the health care law presented a very complicated statutory argument, and it had gone nowhere.
⁵

Katyal made the call to abandon the Anti-Injunction Act argument. However, despite continued opposition from some in the administration, he would not abandon the argument that the health care law was a constitutional exercise of Congress’s power to tax and spend for the general welfare.

“I thought the tax argument was important to have in our arsenal,” said Katyal. He recalled that the Yale Law School constitutional law scholar Akhil Amar called him and urged him to use in the government’s appeal a 2009 decision by Chief Justice Roberts in which the chief avoided the constitutional issue in a voting rights challenge by finding another way to read the voting rights law.
⁶

In
NAMUDNO v. Holder
, Roberts, quoting an earlier Supreme Court decision, said, “ ‘[i]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.’ ” Instead of deciding whether Section 5 of the Voting Rights Act was constitutional, the 8–1 majority interpreted another provision in the law to resolve the utility district’s problem with the Voting Rights Act.

“[Amar] said, ‘You should really cite the
NAMUDNO
case,’ and we
did because, he said, ‘If you can construe this as a tax, if there’s a way to do so, the chief’s opinion in that case is the way to do it.’

“It’s the precedent which basically drives what the chief justice did,” explained Katyal. “It’s rewriting the statute in a way to make it constitutional, what the chief calls a saving construction. I thought Akhil’s suggestion was very smart, to basically say, you could see it as a tax, you might not, but
NAMUDNO
tells you your duty is to save the statute by construing it as a tax. I didn’t think, honestly, at the time, the
NAMUDNO
saving construction idea was going to be the thing that won, but you know, it turns out to be.”

And there was the government’s basic commerce clause argument: the individual mandate regulates the way people pay for health care services, which is a type of economic activity that substantially affects interstate commerce.

For his part, Paul Clement took his side’s commerce clause arguments and, in his trademark style, boiled them down to a clear and simply framed argument: Congress has substantial power to regulate interstate commerce, but it may not compel individuals to enter into commerce so that Congress may better regulate them. Upholding the law would mean there is no meaningful limit on Congress’s power.

Unlike Clement, who would argue health care in one appellate court, Katyal would make the government’s argument in four appellate courts while managing his office’s caseload in the Supreme Court. Because of the high stakes in the health care case, he departed from the office’s tradition of two mock- or “moot”-court arguments per case and did four; and he took one other unusual step.

“I also went to all the agencies and listened—Treasury and the IRS, HHS, the White House, to understand the different policy concerns,” he said. “Normally as SG, everyone comes to you. But I really wanted to go there and learn what concerned them. You don’t often get that by who they send to you. If you go there, there are twenty people talking to you. If they come to you, there’s one person.”

A tenured professor at Georgetown University Law Center, Katyal
had taught constitutional law numerous times and was comfortable with the legal arguments in the case, “but all of the facts and what the Affordable Care Act did, the 2,400 pages—all of that, it was huge and required a massive amount of time for preparation.”

•  •  •

As the health care cases moved through the appellate courts that spring, the Supreme Court prepared to put the 2010–11 term to bed.

In some ways, the last day of the term was a mini-portrait of the entire term. There were more Court-imposed obstacles for injured persons trying to hold companies accountable, more protection of repugnant speech, and a freshman who wielded words like a swordsman.

The most surprising, headline-grabbing case of the term turned out to be a civil procedure case—a very big one, involving federal court rules for certification of class action lawsuits. The case was
Wal-Mart v. Dukes
, the largest gender discrimination class action in history. A lower court had certified a class of 1.5 million female Wal-Mart employees who claimed they were paid less than men in comparable positions and received fewer promotions to management positions. The class was later reduced to 500,000.

The justices agreed to answer two questions, one of their own making. The women had won class certification under a rule provision intended to apply to classes seeking injunctions or declarations as relief, and not money damages. However, these women were seeking monetary relief, such as back pay and front pay. Were they properly certified as a class under that particular rule? The second question was whether this class met the basic requirements for class action certification, particularly so-called commonality—questions of law or fact common to the class.

The Court had little problem answering the first question. The justices unanimously agreed that the class was improperly certified under a provision excluding class actions for damages. However, they divided 5–4 on the second and more crucial question. Justice Scalia, writing for
the conservative majority, said these class members were too dissimilar, in their jobs, their supervisors, their store locations and store policies. “They have little in common but their sex and the lawsuit,” he wrote. The majority also said the women had failed to show that Wal-Mart had a general policy of discrimination, and it rejected expert testimony that the company’s policy of delegation of discretion to supervisors over pay and promotions could itself lead to discriminatory results.

Justice Ginsburg, joined by Breyer, Sotomayor, and Kagan, strongly dissented, accusing the majority of imposing a more stringent commonality test on the women, one that disqualified classes “at the starting gate.”

The case was one of three closely followed by the U.S. Chamber of Commerce. The chamber won all three. The second was
American Electric Power Co. v. Connecticut
, in which eight states and New York City sued five power companies and the federal Tennessee Valley Authority, claiming their greenhouse gas emissions created a public nuisance. The Court, led by Ginsburg, unanimously agreed that the Clean Air Act and proposed federal rulemaking to limit greenhouse gas emissions displaced any public nuisance action by the states and the city. The third case, involving arbitration clauses in cell phone contracts, was the 5–4 ruling by the conservative majority in
AT&T Mobility v. Concepcion
, preempting a California law prohibiting waivers of class action lawsuits in contracts. However, the chamber lost its own case challenging on preemption grounds an Arizona law penalizing employers who hire illegal immigrants.

The Court also turned again to an area of law fast becoming identified with the Roberts Court: the First Amendment. The justices decided four important cases, prompting one constitutional scholar to label the Roberts Court “the most consistently and strongly protective free speech Court in history.”

The Court, as it did in the previous term when it struck down a federal law banning animal crush videos, refused to carve out of the First Amendment’s protection hateful speech by the Westboro Baptist
Church, a fringe group that pickets funerals of military servicemembers with anti-gay and other hate signs and chants. The church was sued by the father of a serviceman whose funeral the church picketed. He claimed intentional infliction of emotional distress.

Roberts wrote for the 8–1 majority in
Snyder v. Phelps
that “Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.” Alito, as he was in the animal crush video case, was the lone dissenter. He said the tort of intentional infliction of emotional distress was narrow, with rigorous requirements for recovery. “When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery,” he countered.