When Chief Justice John G. Roberts Jr. takes his usual center seat on the Supreme Courtbench on March 26, he will begin presiding over an extraordinary three days of arguments that will determine the fate of President Obama’s sweeping health care law.
The decision in the case, expected by June, will have practical consequences for tens of millions of Americans without health insurance, and it may affect Mr. Obama’s re-election chances.
It will also shape, if not define, the chief justice’s legacy.
Chief Justice Roberts is just 57, and he will probably lead the Supreme Court for an additional two decades or more. But clashes like the one over the health care law come around only a few times in a century, and he may well complete his service without encountering another case posing such fundamental questions about the structure of American government.
The case will require the chief justice to choose between two competing instincts.
On the one hand, he views himself as a steward of the court’s prestige and authority, and he has called for incremental decisions from large majorities rather than broad but sharply divided rulings. “As chief justice, Roberts has been extremely careful with the institutional reputation of the court,” said Barry Friedman, a law professor at New York University who has filed a brief urging the court to uphold the law.
The court has not rejected legislation as ambitious as the health care law since the 1930s. There is, moreover, only one plausible way for the justices to strike down the law, scholars who study the court say: by a 5-to-4 vote divided along ideological lines.
All of that might augur a cautious approach.
At the same time, Chief Justice Roberts has embraced an array of assertive judicial projects that have interpreted the Constitution in ways that have fundamentally reshaped American law. The court he has led since 2005 has cut back on campaign spending limits, gun control laws, procedural protections for criminal defendants and the government’s ability to take account of race in decisions about employment and education.
Chief Justice Roberts has not exhibited the same intense focus on the question of federal power that is at the heart of the health care case, and he has offered only passing hints about his thinking on the subject. He did surprise some in 2010 by signing, along with the court’s four more liberal members, Justice Stephen G. Breyer’s majority opinion affirming Congressional power to authorize the continued civil confinement of sex offenders after they have served their criminal sentences.
That ruling led some observers to say that Chief Justice Roberts is not as interested in exploring the limits of federal power as were Chief Justice William H. Rehnquist, who died in 2005, and Justice Sandra Day O’Connor, who retired in 2006.
“Federalism has less salience with this court than it did with the Rehnquist court,” Sri Srinivasan, then a lawyer in private practice, said at a Chamber of Commerce briefing in 2010. Mr. Srinivasan is now principal deputy solicitor general.
Predicting the outcome of the health care case is hard, because it is both surpassingly important and quite idiosyncratic.
The law, Patient Protection and Affordable Care Act, sets out to eliminate the United States’ status as the only rich country without almost universal health care. Mr. Obama’s aides compare its significance to that of Medicare or Social Security, while Republican leaders say it helps move the country dangerously close to European-style big government.
The court that will hear the health care case is in some ways as extraordinary as the case itself.
For the first time since at least 1953, when Chief Justice Earl Warren joined the court, the justices are divided along not only ideological but also partisan lines: its five more conservative members were all appointed by Republican presidents and its four more liberal members by Democrats.
Add to that the conventional wisdom about which votes in the health care case are fixed in concrete: the four justices appointed by Democrats are thought certain to vote to uphold the law, and Justice Clarence Thomas, appointed by the elder George Bush, is believed to be a sure vote to strike it down.
The consensus among scholars and Supreme Court practitioners is that Chief Justice Roberts is unlikely to add the fifth vote to those of the four justices in the court’s liberal wing to uphold the law. But he is said to be quite likely to provide a sixth vote should one of the other more conservative justices decide to join the court’s four more liberal members.
Either way, then, the chief justice is likely to be in the majority. Indeed, in the last two terms Chief Justice Roberts has been in the majority at least 90 percent of the time, a distinction he shares with only Justice Anthony M. Kennedy, the court’s swing justice.
Should a closely divided court strike down the health care law, the decision will call to mind Bush v. Gore in 2000 and Citizens United v. Federal Election Commission in 2010. They were 5-to-4 rulings decided along ideological lines, but there were Republican appointees on both sides.
Chief Justice Roberts was not on the court when Bush v. Gore was decided (though he played a minor role in assisting George W. Bush’s legal team as a lawyer in private practice). Citizens United is another matter: it is easily the most divisive decision issued by the Roberts court and so one from which he may have drawn lessons.
“In all the years he has been on the court, there had been only one firestorm, and that was Citizens United,” Professor Friedman said. “And I don’t think he anticipated that reaction.”
The Politics of the Ruling
The reaction to the ruling on the health care law, which will probably land just as the presidential campaign enters its final stretch, will probably be even greater. And unlike Citizens United, which overturned part of a law that predated Mr. Obama’s presidency, the health care law is his signature domestic accomplishment.
The six hours the court will devote to arguments is a testament to the case’s importance. The last time the court heard longer arguments in a politically charged case was in 1966, over the Voting Rights Act, a crowning achievement of the civil rights movement.
And the last time the Supreme Court ruled that a major piece of economic legislation was beyond Congressional power to regulate commerce was in 1936, when the court struck down minimum-wage and maximum-hour requirements in the coal industry.
James F. Simon, a law professor at New York Law School, said the battle over the health care case was reminiscent of the showdown between the Supreme Court and President Franklin D. Roosevelt over the New Deal. Chief Justice Charles Evans Hughes, who led the court from 1930 to 1941, had much in common with Chief Justice Roberts, said Professor Simon, the author of a new book, “FDR and Chief Justice Hughes.”
“He was, like Roberts, a brilliant lawyer and clearly had command of the cases and the calendar,” Professor Simon said. “He was trying to hold the court together, and he was trying to show it was impartial.”
But there are differences, too. “Hughes came out of the progressive wing of the Republican Party,” Professor Simon said, noting that Chief Justice Hughes voted to uphold major pieces of New Deal legislation. “Roberts, on the other hand, comes out of the conservative wing of the Republican Party.”
Chief Justice Roberts is not an entirely blank slate when it comes to the scope of the Constitution’s commerce clause. He signaled sensitivity to its limits in his very first judicial opinion, not long after he joined the United States Court of Appeals for the District of Columbia Circuit in 2003. In it, he unsuccessfully urged the court to reconsider a decision allowing Congress to protect endangered species under the clause. The case concerned, he said, “a hapless toad that, for reasons of its own, lives its entire life in California.”
He also addressed the commerce clause at his confirmation hearing in 2005. “It is a broad grant of power,” he said of the clause. “This body,” he added, referring to Congress, “has the authority to determine when issues affecting interstate commerce merit legislative response at the federal level.”
Opponents of the health care law say a decision sustaining it would empower Congress to pass laws concerning essentially every aspect of American life in the name of regulating commerce. The law’s supporters say a decision in their favor would leave in place significant limits; for example, Congress may act only to address national problems that are economic in nature. They add that political considerations are a further constraint.
After the justices hear arguments, they will gather for a private conference and cast tentative votes. Then Chief Justice Roberts will, if he is in the majority, exercise one of the prerogatives of his position: he will choose who will write the majority opinion.
In major cases, chief justices have not hesitated to choose themselves. Whichever way the health care case comes out, the task of explaining the ruling to the American public is likely to fall to Chief Justice Roberts.