Five Republican appointees on the court, why is Obamacare’s case even a close call?

by Eric Shierman

All too often we hear someone argue that a law is unconstitutional by showing why it is bad public policy. The problem with this line of reasoning is there are many bad policy choices that are perfectly constitutional. For a law to be struck down by judicial review, it should violate either the structure of government or an incorporated right.

Perhaps the reason so many people make this mistake is that in the post New Deal era of progressive jurisprudence, that is exactly what Supreme Court Justices have been doing. They start from a notion as to what they think is fair, and then work their way back to form a doctrinal fig leaf to support their pre-determined decision. When Obama’s solicitor general either showed up to court unprepared or choked under the pressure, his terrible performance in no way affected the inevitable votes of the four Democratic appointees. When Donald Verrilli could not answer Justice Scalia’s questions on Tuesday regarding what hypothetical purchases could not be mandated, Justice Breyer answered them for the government. The actual litigants in the room merely act as avatars for the justices’ positions.

The justices’ questions are not for clarification; they are acts of advocacy themselves. Indeed they are floor speeches. The Supreme Court has become a third chamber of congress. In our tri-cameral form of government, the Supreme Court is America’s House of Lords.

The member of this august body that seems to value his noble image the most is Chief Justice Roberts. The most important thing to him is to keep the court from making too radical an impact on the predictability of policymaking and he will want to avoid a 5 to 4 decision. There will never be more than five votes to overturn Obamacare in any meaningful way, so Roberts will be looking for a crafty way to avoid a broadly worded, landmark decision one way or the other.

It seems clear to me that Roberts would be willing to confirm the mandate if he could write an opinion so narrowly decided that it was guaranteed not to set a precedent that enabled more expansive mandates down the road to eat broccoli, go to the gym, or buy a Chevy Volt. This would mean the fate of the mandate might be decided on matters of fact rather than matters of law. The opinion might bypass the question of whether or not the federal government has the power to mandate the purchase of a product, finding that the act of attempting to free-ride in a medical system that cannot deny emergency care already constitutes participation in commerce. If Justice Breyer can sell him on the right language, Obamacare’s mandate might survive.

The greatest surprise on Tuesday was Justice Kennedy. Who would have thought this would hang on Roberts? If anyone out there has a solid read on Anthony Kennedy’s core judicial theories please summarize them for me in the comments section below. Justice Kennedy made it clear that the mandate did not have the low bar of a rational basis test to win his confirming vote. Kennedy declared the government faced “a very heavy burden” because the mandate took “a step beyond what our cases allowed.”

What made Justice Kennedy such a hardliner? Let me offer my own take on why he was uncharacteristically aggressive. Do you remember Obama’s 2010 State of the Union Address where the president tried to shame the court for its Citizens United decision? I’m sure you have seen the clip many times where Justice Alito silently mouths off in response. Let me show you another clip that misses Alito’s lips so your eyes will naturally wander to the face of the guy sitting in the middle of the front row.

That scowling man surrounded by clapping Democrats simmering under the political pressure of the bully pulpit is none other than Justice Kennedy author of the majority opinion in Citizens United – payback’s a barrister. No politics or personal animosities to see here folks. Move along!

In the high brow politics of Supreme Court decisions, why would we expect the matter of severability to be decided any more rationally? The court has never developed a consistent doctrine of severability anyway so why start now? Surprisingly it was Justice Scalia that swung the first punch at the plaintiffs’ case which argued that if the mandate is struck down, the entire law must be struck down. Soon all the Justices piled on.

In sharp contrast to the solicitor general’s poor performance the previous day, Paul Clement continued to live up to his reputation as the best litigator of his generation with remarkably lucid answers to tough questions. His strongest moment came in response to Justice Kennedy challenging him to articulate a workable severability standard for the court to apply. Kennedy reminded him that the court did not want to be drawn into trying to make an “intrusive” inquiry into what was on congress’ mind in adopting one provision and rejecting another.  “What test,” Kennedy asked, “do you suggest that we follow if we want to clarify our jurisprudence?”  Clement replied that the “objective test” would be whether or not the law “can operate in the manner that Congress intended” if the mandate were stricken.

The government did not do so well, its arguments being made by their relief pitcher Deputy Solicitor General Edwin Kneedler. Apparently Verrilli was benched for throwing too many home runs to the other team. Kneedler did not have a meltdown like his boss but was challenged by the absurdity of the argument he was tasked to make. The government did not take the opposite side of the plaintiffs by arguing that if the mandate is struck down, the rest of the law should stand. No, they tried to argue that most of the law should stand, but the government should be able to arbitrarily pick a few other provisions that should fall along with the mandate (that the health insurance lobby has no doubt identified for them). Across the bench, no justice would seriously entertain that silly suggestion. How they rule on severability is anybody’s guess, but one thing was clear: no justice relishes the idea of reading 1,700 pages of law to decide what to keep and what to throw out.

The abuse of congress’ spending power in its expansion of Medicaid, is to me the most important constitutional challenge, but unfortunately does not drive the populists’ passions the way the mandate does. This power of congress has only been challenged once in the past 76 years in Dole v. South Dakota, and then the court sided with the government, namely Elizabeth Dole, Reagan’s Secretary of Transportation. In the decision however, the court recognized that the federal government could not pass a law mandating states to raise their drinking age to 21 but it could use its distribution of highway dollars as an incentive. Writing for the majority, Chief Justice Rehnquist declared the relatively small amount of money at stake a mere “pressure” on state lawmakers. His opinion made clear that as a matter of degree, a much larger amount of money would rise to the level of “coercion.” If the trillions of dollars at stake over this next decade for Medicaid doesn’t meet that test, what would?

The coach apparently decided to put Verrilli back in the game, but his ashen white face, shaking hands, and shrill emotional arguments were such a contrast to Clement’s crisp, blunt, and professional tone that it almost appeared the government was losing Justice Kagan, Obama’s most recent appointee and Verrilli’s predecessor. If Obama loses Elena Kagan, has he lost middle America?

Verrilli was repeatedly asked if there was any limit to how far state governments can become minimized to mere departments of the federal government, so the solicitor general adopted the novel legal tactic of refusing to answer the question. He repeatedly refused to tell the court were the limits of the Secretary of Health and Human Services’ powers are because he did not want to tie the hands of a future administration. This repeated obstinacy prompted Kagan to jump in to the fray and begin suggesting obvious ways in which federal power is limited.

When the bloodbath was over, Verrilli essentially set aside matters of law, and wasted the rest of his time making emotionally charged policy arguments about how millions of Americans need this Medicaid expansion because they cannot afford healthcare. Like a political philosopher he opined on a positive theory of rights, that without healthcare there is no human liberty, summing up: “I do think it’s important that we not lose sight of that in a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure the blessings of liberty.” And thus he opened himself up to a level of mockery in Clement’s final rebuttal that prompted even the Democratic appointees to all beam a smile of approval:

I certainly appreciate what the solicitor general says, that when you support a policy, you think that the policy spreads the blessings of liberty.  But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And, it’s a very strange conception of federalism that says that we can simply give the states an offer that they can’t refuse, and through the spending power which is premised on the notion that congress can do more because it’s voluntary, we can force the states to do whatever we tell them to.  That is a direct threat to our federalism.

This week was a perfect legal storm that seemed to engulf the future of Obamacare in ways that few experts would have predicted. Of course the Supreme Court justices are not debate coaches. Since the government couldn’t seem to hire good legal help, no doubt Justice Breyer, behind closed doors over the next few months, will be making the arguments Verrilli dropped, but that is not the only mitigating factor in Obamacare’s favor. As Steve Buckstein pointed out earlier this week, the Republican appointees enjoy expansive federal power too when it serves their purposes. The only likely scenario for a majority to strike down the Medicare expansion would require an opinion’s language so narrow that it would not open up the floodgates of litigation against many decades of federal expansion into all areas of domestic economic policy.

The most interesting reality here is that only Republican appointees are in play while the Democratic appointees stand as unmovable ideologues. I suggest that is because on the matter of economic rights, the Justices Breyer, Ginsburg, Sotomayor, and Kagan at least have an ideology. Decades of New Deal jurisprudence have hammered home the doctrine that there is no such thing as a constitutionally protected economic right. Twenty years after the New Deal, progressive legal thought did develop an appreciation for civil liberties, but not economic liberties.

A coherent conservative alternative has emerged on civil matters only. Justices Scalia, Thomas, and Alito have refined theories as to why Warren Court cases were wrongly decided, but they are just as likely to roll their eyes if a litigator tried to overturn the Slaughter House Cases or rehabilitate Lochner v. New York. For decades the Republican Party has maintained a singular focus on abortion as a litmus test for appointing judges who reject the existence of a constitutional right to privacy. This has come at the expense of all other matters.

Despite the great show, I still have no idea whether Obamacare will be struck down or confirmed. As a matter of probability it’s really a coin toss. With five Republican appointed justices on this court, the fact that this is a cliffhanger in the first place highlights decades of misplaced priorities. Far more important than whether or not Obamacare is confirmed or struck down will be whether or not the opinion the Republican appointees sign on to will begin to recognize constitutionally protected economic rights.

Eric Shierman lives in southwest Portland and is the author of A Brief History of Political Cultural Change, and also writes for The Oregonian’s My Oregon blog.