The Roberts Court: The Struggle for the Constitution (51 page)

All of which makes the possibility of long-term fallout among the justices because of the Affordable Care Act decision difficult to believe.

The leak report also said, “Some people say you would have to go back nearly 70 years to see this kind of tension, and almost bitterness, that now exists among the justices.” Seventy years ago is a return to the Court of Douglas, Frankfurter, Robert Jackson, and Hugo Black. In his book
Scorpions
, Noah Feldblum describes those years as a time of bitter rivalries and invective among those justices.

When the term ended, several justices traveled overseas to teach and others left the city for favorite summer vacation spots. One justice predicted that the fall of 2012 would bring cooler temperatures inside the Court as well as outside.

“Everyone here does have the sense the institution is so much more important than the nine who are here at any point in time and we should not do anything to leave it in worse shape than it was in when we came on board,” said the justice. “My guess is we’ll come back in the fall and have the opening conference and it will be almost the same. I would be very surprised if it’s otherwise.”
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The justice appeared to be right when the new term opened on October 1, 2012. The justices seemed to be engaged in business as usual and there was no visible sign of the tensions that marked the end of the prior term. However, the new term once again threatened to expose deep divisions and to trigger high emotions.

Unlike the health care term, in which the justices struggled with structural issues concerning the roles and powers of the national and
state governments under the Constitution, the new term raised issues of equality that would play out in challenges involving affirmative action, same-sex marriage, voting rights, and perhaps even abortion before the final day.

And those issues in the new term again present a challenge for Chief Justice Roberts, who had espoused consensus, humility, and modesty in making decisions during his confirmation hearings.

Roberts’s upholding of the individual mandate in the health care law was the first time he had joined the Court’s liberal wing in a 5–4 decision since becoming chief justice. Despite criticism by bitter and disappointed opponents of the law who questioned his conservative credentials, Roberts is no liberal, not even close. However, he is the chief justice of the United States, and as one justice, referring to the justices’ alignments last term in the health care and the Arizona immigration decisions, noted: “The institution [Supreme Court] moves you, and perhaps even more a chief justice.”

That is not to say that Roberts’s decision was unprincipled.

Read his decision, Justice David Souter would say. What is not clear yet is the long-term significance of the commerce clause and Medicaid rulings. Roberts and the Court’s four other conservatives approved a new limit on Congress’s lawmaking power under the commerce clause, perhaps ultimately the most important limit in more than seventy years. How that will affect Congress’s ability to address national problems, for example, a health crisis requiring mass inoculations, is yet unknown. And because of the Medicaid ruling, seven justices opened to potential challenges numerous federal programs that place conditions on states in return for federal funding.

Seven years before Roberts faced the most challenging case of his career, he sat in a Senate hearing room, a stone’s throw from the Court to which he had just been nominated. A Democratic senator, not expecting an answer, asked: “What kind of justice will John Roberts be? Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter and Friendly?”

Those four judges were practitioners of judicial restraint, long the mantra of the conservative legal community. It emphasizes deference to legislative bodies and respect for past precedents. Roberts claims that tradition when, in his health care opinion, he quotes an earlier Court, saying, “ ‘Proper respect for a co-ordinate branch of the government’ requires that we strike down an Act of Congress only if ‘the lack of constitutional authority to pass [the] act in question is clearly demonstrated.’ ”

In the health care battle, ironically, the liberal legal community, often accused of promoting judicial activism, was urging judicial restraint, and many in the conservative legal community, pushing a novel and “off the wall” commerce clause theory, were seeking judicial activism.

Roberts’s decision and the joint dissent by Kennedy, Scalia, Thomas, and Alito also reflected two different views of what judicial restraint should have dictated that the Court do. For Roberts, it was the view of Harlan, Frankfurter, Jackson, and Friendly: If there is a reasonable construction of the law, save it. For the joint dissenters, judicial restraint meant: Strike down the law in order to enforce or protect the Constitution’s limits on federal power.

Before the health care ruling, the constitutional law scholar and former acting solicitor general Neal Katyal, in a question-and-answer article in
The Washington Post
, said he thought “one of the hardest things about constitutional law is that there aren’t clear answers to questions. There’s some room for discretion on the part of judges.”
¹⁴

As the health care litigation in the lower courts and in the Supreme Court showed, reasonable judges and justices have different ways of finding the answers, and often in ways that defy ideology and politics.

In the years since the senator asked what kind of justice Roberts would be, Roberts has acted with a boldness that angered those on the left on issues of race, guns, and campaign finance, and with restraint and modesty at times that frustrated those on the right. Each term is a story in itself. With the health care decision, the Kennedy Court faded into the background and the Roberts Court firmly emerged.

There are many more stories to be told. With same-sex marriage, affirmative action, and voting rights on the docket in the 2012–13 term, a story dramatically different from the prior term may unfold. But at least for the one term that will be known always for its historic, landmark health care decision, Roberts could answer that senator’s long ago question about whether he would be a moderate, temperate judge like Harlan, Jackson, Frankfurter, and Friendly, with a simple “Yes.”