Health-Law Case Puts Roberts in Crucible
Chief Justices Maneuver to Shape Landmark Rulings With One Eye on History, Another on Supreme Court's Reputation
U.S. NEWS
March 29, 2012, 7:23 p.m. ET.
By JESS BRAVIN
WASHINGTON—If there was any doubt beforehand, three momentous days of argument this week established that the health-care ruling is sure to be a defining moment for the Supreme Court—and a crucible for Chief Justice John Roberts.
The court's four liberals made clear their view that Congress holds ample power to require Americans to carry health insurance, as it did in the 2010 health-care law championed by President Barack Obama. From the right, Justices Antonin Scalia and Samuel Alito left little doubt they found the insurance mandate unconstitutional, a position virtually certain to be shared by Justice Clarence Thomas, who by custom didn't speak during the court's arguments.
Justice Anthony Kennedy, whose comments suggested deep concerns with arguments on both sides of the case, could plausibly vote either way on the insurance mandate. And Chief Justice Roberts, while seeming somewhat more skeptical of the law, nevertheless left himself room to uphold it and remain consistent with his remarks during the oral arguments.
With a decision expected in late June, the next three months offer the justices ample time to reflect on the case and perhaps change their views. Should Justice Kennedy ultimately find the mandate unconstitutional, most observers believe Chief Justice Roberts would join that side, leading to a 5-4 opinion to strike down at least part of the law.
As first among equals, the chief justice, when in the majority, selects who writes the court's opinion, and it seems likely he would do so himself if the vote invalidates an act of Congress with such political and constitutional implications.
But if Justice Kennedy votes to uphold the law, some believe the chief may join him, thereby retaining the power to shape the court's opinion on a case that is sure to be a landmark.
Moreover, "he might go with the majority because he doesn't want it come out 5-4," said Newton Minow, who served as law clerk to Chief Justice Fred Vinson in the 1950s.
Mr. Minow, who later served as Federal Communications Commission chairman, said Chief Justice Roberts is likely aware of the partisan fallout of Bush v. Gore in 2000, which effectively decided the presidential election in favor of George W. Bush, and the Citizens United case in 2010, which overturned limits on corporate and union spending to influence elections. Both contentious decisions came on a 5-4 conservative-liberal split.
"Since Bush v. Gore, I think the court's reputation has been blemished as somehow being not as independent as it perhaps was earlier in its history," Mr. Minow said.
Earl Maltz, a professor at Rutgers School of Law in Camden, N.J., said Chief Justice Roberts likely has enough confidence in his legal judgment so as not to worry much about public perception of a closely divided opinion.
But chief justices have been known to strategically switch their votes to keep control of who writes the opinion on important cases, Mr. Maltz said. Chief Justice Warren Burger, for instance, on several occasions switched "his vote in order to assign the opinion, most famously in Roe v. Wade," Mr. Maltz said, speaking of the landmark abortion case.
Mr. Maltz said that if Justice Kennedy joins the liberals to uphold the health law, Chief Justice Roberts might reason that "even though I wanted to get this struck down, I can't, so I might as well" write the terms under which it remains on the books in a way more favorable to a conservative viewpoint.
Chief Justice Roberts also figures as a swing vote, even more so than Justice Kennedy, on the separate issue of whether the Obama health law's expansion of Medicaid is constitutional. Lower courts found the provision acceptable, saying that if states didn't like the expansion, they could drop out of the federal-state program for the poor.
At Wednesday arguments, the court's conservatives including Justice Kennedy expressed concern that states essentially were compelled to raise their Medicaid spending because dropping out wasn't a realistic option. But Chief Justice Roberts suggested the view that it was late for the states to try to assert such rights given "how willing they have been…to take the federal government's money."
"It seems to me that [the states] have compromised their status as independent sovereigns...," he said.
Write to Jess Bravin at jess.bravin@wsj.com
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