This article first appeared in the St. Louis Beacon, July 2, 2012 - Chief Justice John G. Roberts' opinion upholding the Affordable Care Act is an act of crafty judicial statesmanship that recalls important strategic Supreme Court decisions as far back as Marbury vs. Madison, the 1803 case that established the court's power to declare acts of Congress unconstitutional.
That is the emerging view of legal experts mulling over Roberts' decision. They point to two other more recent decisions involving judicial statesmanship: Planned Parenthood vs. Casey, the 1992 decision reaffirming the abortion right, and Dickerson vs. U.S., the 2000 decision in which former Chief Justice William H. Rehnquist reaffirmed the Miranda decision that he had abhorred.
Greg P. Magarian, a law professor at Washington University, put it this way in an email: "The more important political dimension of the case ...was institutional: Roberts' fascinating effort to defuse a potentially dangerous conflict. His opinion is legally incoherent all over the place, but it's strategically brilliant. I've heard a lot of comparisons to Marbury, but it also reminds me of Casey and Dickerson, the last cases I can remember in which the court went this far out of its way to protect its institutional capital." Magarian served as a clerk for former Justice John Paul Stevens.
In Casey, three justices appointed by Republican presidents -- David H. Souter, Sandra Day O'Connor and Anthony M. Kennedy -- wrote a remarkable joint opinion in which they reaffirmed Roe vs. Wade partly to preserve the court's "legitimacy." They wrote: "The court must take care to speak and act in ways that allow people to accept its decisions on the terms the court claims for them, as grounded truly in principle, not as compromises with social and political pressures." The three justices worried that a decision overturning Roe would make it appear that Republican presidents had effectively changed the constitution by appointing abortion opponents to the bench.
Before Dickerson, Rehnquist had voted in 57 out of 57 cases to narrow Miranda and its famous protection of a criminal defendant's right to remain silent and have a lawyer. So it was startling when he was the author of a 7-2 opinion reaffirming Miranda. His law clerk, Ted Cruz, wrote later in the Harvard Law Review that Rehnquist acted as he did because “it was the best that could be gotten from the current members of the court.” By voting with the majority, Rehnquist could assign himself the opinion and write it narrowly.
Marbury may be the best analogy. Chief Justice John Marshall managed to get what he wanted institutionally -- judicial review -- while giving his foe, President Thomas Jefferson, what he wanted: a justification for not delivering a judicial commission to William Marbury, a Federalist foe.
Charles Warren, the famous Supreme Court historian, wrote that Marshall "undoubtedly ... welcomed the opportunity of fixing the precedent in a case in which his action would necessitate a decision in favor of his political opponents."
Long term vs. short term
Roberts may have accomplished exactly the same feat. He narrowed congressional power under three of the most important sources of that power: the Commerce Clause, the Necessary and Proper clause and the Spending clause. At the same time, he gave President Barack Obama, no political friend, a victory in the outcome of the case, upholding the health-care law.
The analogy is not perfect. Obama's political victory was much bigger than Jefferson's. Obama won the Supreme Court's validation of his most important piece of legislation and the most far-reaching piece of social welfare regulation in half a century. Jefferson won only the right not to appoint an enemy justice of the peace.
In addition, only the future will dictate whether the three limitations on congressional power will turn out to be anywhere near as important constitutionally as the power of judicial review. The chances are that they won't.
One factor that will determine how much Roberts hemmed in congressional power will be who wins the next election and gets to appoint the next justices to the Supreme Court. If Mitt Romney wins and can replace Justice Ruth Bader Ginsburg, then Roberts will have another ally for limiting congressional power. But if Obama wins reelection and can replace one of the aging conservatives, then Roberts' limitations could be short-lived.
Also, recent decisions that have appeared to limit congressional power have not had much effect.
In the late 1990s, Rehnquist appeared to put a limit on federal power to regulate interstate commerce when his court struck down the Gun Safe Schools Act and parts of the Violence Against Women Act. But those limitations did not have much long-term impact. Roberts' limitation on the commerce power -- saying it can regulate activity but not inactivity -- does nothing to limit Congress' past use of its commerce power to pass the Civil Rights Act and to limit all sorts of activity with some direct impact on commerce, however miniscule.
One factor that could limit Roberts' opinion on the commerce power is that no one else signed it, so, many legal scholars say, it is "dicta" without precedential effect.
Joel Goldstein, law professor at Saint Louis University, said, "This decision doesn't do much (regarding the) Commerce Clause, in my view, other than suggesting that five justices believe the Commerce Clause does not allow Congress to regulate economic inactivity."
But he wrote in an email that the decision may "be much more consequential re the Necessary and Proper Clause." That clause says that Congress has the power to pass any laws "necessary and proper" to carrying out its powers or those of the federal government.
In much-quoted language upholding the creation of the Bank of the United States, Marshall wrote: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional."
Wrote Goldstein: "Roberts' opinion on that clause is somewhat opaque and leaves him some room in the future. That's not surprising given the enormous importance of that clause, not simply in federalism cases but also regarding the operation of the branches of the national government. The court may be poised to scrutinize Congressional action under it with less deference" than in the past."
Was there a deal?
One area where the court made a clear departure from the past was, for the first time, finding the outer limit of Congress' previously almost limitless power to spend for the general welfare. In the past, the court has said that there was some theoretical limit to where Congress' power to attach strings to money compelled states to take actions they didn't want to take. But the court never had found that outer limit. This time it did.
Significantly Justices Elena Kagan and Stephen Breyer, Democratic appointees, agreed with Roberts and the conservative dissenters that Congress could not threaten to remove all old Medicaid money from states to force them to agree to the huge expansion of Medicaid provided in the ACA. So the vote was 7-2 limiting the spending power.
Speculation has been rampant among legal experts that a tacit agreement between Roberts and the two Democrats may have led to Roberts upholding the mandate and them joining him to limit Congress' spending power. Some even think Roberts may have switched his vote late in the game, partly because the joint dissent read more like a majority opinion that had lost a vote.
David Roland, director of litigation at the libertarian Freedom Center of Missouri, wrote in an email that the limitation on spending "unquestionably marks an important limit on the extent to which Congress may induce the states to adopt certain policies, but the opinions that determined the Medicaid expansion was unconstitutional provided no real guidance as to how Congress and the courts are supposed to figure out the limits of the legislature's power in this regard."
At the same time that Roberts contracted three congressional powers, he reaffirmed Congress' broad taxing power as the basis to uphold the individual mandate requiring most people to purchase health care. In the wake of that decision, some pundits recalled a story told by New Deal Labor Secretary Frances Perkins in her memoirs.
Perkins was worried about the Supreme Court throwing out the proposed Social Security law. She went to a 1934 Washington dinner party and confided her concern to Justice Harlan Fiske Stone. He replied, "The taxing power of the federal government, my dear; the taxing power is sufficient for everything you want and need.”
What is unclear is how Roberts' three limits on federal power will play out and to what extent the broad taxing power will make up for any limitations.
Goldstein wrote, "Although the outcome in preserving ACA is not pleasing to the right, long term the court may have limited somewhat the exercise of federal power. The uncertainty re the scope of the Necessary and Proper Clause may give Congress pause in the future. Since legislation under the Taxing or Spending powers is less politically attractive than acting under the Commerce and/or Necessary and Proper Clauses, any chilling effect from the uncertainty re the Necessary and Proper Clauses may be significant.
"Of course, the shape of future doctrine is heavily dependent on who is on the court, particularly in the short term who leaves and who replaces him or her. Hence, the outcome of the 2012 presidential and Senate elections are important. But we knew that already."
Roberts will end up appearing especially crafty if his validation of the ACA results in a political backlash helping to elect Romney and a Republican Congress. If that happens, the Republicans may be able to repeal the law and Roberts could end up with colleagues who see the Constitution as he does.
For decades, conservatives criticized the Supreme Court for judicial activism in throwing out acts of popularly elected legislatures and basing the decisions on results rather than legal doctrine. Over the past decade, liberals have been throwing the charge back at conservatives, citing Bush vs. Gore and Citizens United -- the 2000 decision settling the 2000 presidential election and the 2010 decision opening campaigns to unlimited corporate donations.
Was Roberts' decision activist in that it seems to be results oriented?
Bruce La Pierre, a Washington University law professor, says it was activist for Roberts to save a statute that Congress didn't write, in that Congress would not have passed the law if the mandate had been labeled a tax.
Magarian disagreed. "The law is what it is, and for the court to call it a taxing enactment rather than a commerce enactment doesn’t alter what it is. Therefore, I don’t think the court’s choice of legitimating provisions could be activist. ... Having said all that, I think there are grounds for accusing the court of ... I don’t really like the term 'activism,' but let’s say excessive gamesmanship in the tax holding."
La Pierre agreed that activism has become such a term of art in the political arena that it might not be the best term. But he added that "Roberts did something more than act as a partner with the legislature; he didn’t simply spare us the inconvenience of a remand so that Congress could reenact the ACA as a tax. Roberts waded actively into the political debate -- a debate that I think... he should have left entirely to the vagaries of our national politics."
Margarian agreed that despite Roberts' strategic brilliance, there still are questions: "First, is the legal incoherence worth the strategic benefit? Second, if the court is going to pull something like this, should it be more forthright about it, as it was in Casey, or more inscrutable, as it was here?”