During Chief Justice John Roberts’ confirmation hearings, Senator Arlen Specter predicted that the future Chief Justice’s tenure “would present a very unique opportunity for a new Chief Justice to rebuild the image of the court away from what many believe it has become as super legislature and to bring consensus to the court with the hallmark of the court being 5-4 decisions.” Well, this was a 5-4 decision, but it managed to change the image of the court and that of the Chief Justice.
The only precedent that comes to mind to describe the blockbuster health care decision is the Voting Rights Act case, Northwest Austin v. Holder (2009). In that case, following the court’s repeated questioning of the law’s constitutionality at my oral argument, pundits thought the act was going to be declared unconstitutional. And when the Chief Justice handed down his decision in open court, he spent several painful minutes reading from the start of his opinion, which explained why the decision was an intrusion into federalism. This led all of us in the courtroom to think the act would be struck down. But then the Chief reversed course in the middle of his reading and said the act was constitutional. The way the Chief Justice arrived at his result, he explained, was by basically rewriting the Voting Rights Act’s “bailout provision” to make it constitutional.
All those moves were present in the health care opinion. Skeptical questioning at oral argument. Pundit classes chattering. Many minutes on the bench during the announcement of the opinion in open court, where the Chief was attacking the law as unprecedented. But then, a reversal of course, and a rewriting of the statute to save it from a constitutional infirmity. The result was to leave in place a statute that Congress never enacted, according to Justice Kennedy’s dissenting opinion.
There are hard questions about whether the Chief Justice’s approach in the Affordable Care Act and Voting Rights Act cases is more or less “activist” than simply striking the law down (as Justices Kennedy, Scalia, Thomas and Alito would have voted to do). After all, it is hard to imagine this new version of the law being repealed anytime soon, so the notion that the court has left the legislative process unencumbered is not accurate. But one thing is certain: this decision is a stark reminder that there is a difference between law and politics. Think about it: whether in Congress or the boardroom, on the campaign trail or at a dinner party, people’s view of the act’s constitutionality have been driven largely by politics. The court’s decision is ultimately a victory for the principle of law.
In the wake of Bush v. Gore, Americans on both sides became far more comfortable thinking about “Republican” and “Democratic” Justices. But look at what happened in the health care decision: President Bush’s nominee as Chief Justice sided with the Clinton and Obama appointees. And two of those Clinton and Obama appointees — Stephen Breyer and Elena Kagan — in turn sided with the five Republican appointees on the Medicaid question. If this doesn’t demonstrate that the Constitution, and Supreme Court decision-making, isn’t just politics by another name, I’m not sure what could.
As a law professor, the first thing I teach my students is to think like a lawyer. And the first thing that means is to ask the students to reverse in their heads the parties in a case and pretend that each argument was being voiced by the opposite party. Doing so is a helpful way to minimize one’s biases and to develop a lawyer’s skill set. It has often been said that when he was in practice, Chief Justice Roberts was one of the greatest lawyers in American history. Today’s decision proves that he has lost none of that touch since ascending to the bench.
Neal Katyal served as acting solicitor general under President Obama from 2010 to 2011 who successfully argued the health care cases in several appellate courts.