The late Justice William Brennan, a master at marshalling Supreme Court majorities, knew how to count votes before deciding to accept a case. His colleague Justice Arthur Goldberg once thought he had secured Brennan’s agreement to contribute one of four votes required under the court’s rules to grant an appeal. Goldberg was stunned when Brennan didn’t ultimately offer his assent to hear the case. As the justices exited their private conference, where they determine which appeals they will hear, a perplexed Goldberg approached Brennan: “Why didn’t you join three of us to take the case, Bill?”
“Where’s your fifth vote?” replied Brennan. In other words, why take the case if you don’t know you’ll have a majority to win it?
At least four justices recently agreed to review the centerpiece of President Obama’s domestic policy. Presuming for the moment that the court divided into its usual liberal and conservative quartets, what strategies might they have employed in deciding to determine the constitutionality of the Patient Protection and Affordable Care Act (PPAACA)? U.S. Courts of Appeals for the 4th and 6th Circuits had upheld the law’s individual mandate, which requires all Americans to purchase health insurance by 2014 or pay a tax penalty for not doing so. Congress believed it had the authority to impose such a mandate under its constitutional power to regulate interstate commerce. Liberals assert that health care, constituting nearly one-fifth of the nation’s gross domestic product, is demonstrably within Congress’s economic regulatory purview. On the other hand, the 11th Circuit (in a Florida case brought by officials from 26 states) voided the individual mandate, while upholding the PPAACA’s expansion of Medicaid, employer mandates and insurance exchanges. Although all of these circuit decisions were appealed to the nation’s highest court, the justices accepted only the 11th Circuit decision for review. The Supremes have asked both sides to address the constitutionality of the individual mandate and Medicaid expansion, as well as whether the entire law falls if they void only one part of it. The court will also tackle whether the individual mandate penalty can even be legally challenged prior to its implementation.
Although the Obama administration urged the court to accept the health care law appeals, why would the liberals (Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer) have voted to do so when they have far more to lose? Currently, the PPAACA is the law of the land, with its popular provisions in effect: requiring clearer benefit explanations; allowing young adults to remain on their parents’ insurance until age 26; covering preventive services, including birth control; eliminating lifetime caps on coverage; and banning exclusion of children with pre-existing medical conditions. If the liberals do not garner a fifth vote to uphold the law, it might be voided in its entirety. Moreover, the president who appointed two of them, and might well nominate Ginsburg’s successor if she retires in a second Obama term, would be dealt a devastating judicial loss in the midst of his reelection campaign. Only if they knew with certainty that they had a fifth vote, likely to come from Justice Anthony Kennedy, should the liberals have granted review. The court’s swing justice plays his cards close to the robe. With a flair for Shakespearean drama, Kennedy relishes his starring tie-breaking role: “I need to brood,” he once told a reporter, before retiring to his chambers to agonize over how to vote in 1992’s Pennsylvania abortion case. It is unlikely that Kennedy would have already tipped his hand to either of the court’s two factions.
Conversely, the conservatives (Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito) have much more to gain from a victory than the liberals. In voiding the health care law, they would achieve a landmark win for limiting the Congress’s regulatory reach. For nearly six decades after the court’s famous 1937 “switch in time that saved nine,” which upheld New Deal economic regulations, the court steadily expanded Congress’s interstate commerce power. The federal government seemed to regulate everything — from how much wheat an individual farmer could grow to the race of private businesses’ clientele. Yet with a pro-state majority finally in place, led by Chief Justice William Rehnquist, the Supremes invalidated (5-4) the Gun Free School Zones Act in 1995’s U.S. v. Lopez. Rehnquist, for whom Chief Justice Roberts clerked, argued that the federal legislature had not explicitly linked guns in local school zones to commerce between states. Five years later, Rehnquist also invalidated by another 5-4 vote, in U.S. v. Morrison, the Violence Against Women Act’s provision allowing victims to sue their attackers in federal court, rejecting Congress’s data showing that such attacks adversely impact interstate commerce.
But could Obamacare scramble the court’s typical ideological blocs? Federalism cases historically have split the justices into liberal and conservative camps, with the former supporting congressional regulatory power and the latter opposing it. In 2005’s Gonzales v. Raich, however, Scalia and Kennedy joined their liberal colleagues in upholding the federal Controlled Substances Act, under Congress’s interstate commerce power. Yet the case’s outcome, preventing California from allowing even locally grown marijuana for personal medicinal use, allowed Scalia and Kennedy to reach a conservative policy result. Both justices had voted with the conservative majority in Lopez and Morrison to limit federal interstate commerce power. Two liberals (Sotomayor and Kagan) and two conservatives (Roberts and Alito) came to the high court after those landmark precedents, and they have not established records in any Supreme Court commerce power decisions.
Because the health care law, and litigation over it, are both exceedingly complex, the court has scheduled 5½ hours of oral argument — a modern record. Obviously, the clearest decisions would be either to validate or void the entire law. Anything in between those two options, especially if the court is badly splintered, could leave President Obama’s signature legislative success in legal and political limbo. Americans remain confused about, and divided over, whether to repeal the law. Gallup has discovered a slight plurality (47% to 42%) now favoring repeal; other polls indicate a thin majority to do so. Like virtually all of current American politics, these divisions run along deeply partisan fault lines, with 80% of Republicans supporting repeal and 64% of Democrats wanting to maintain the law.
If the court upholds the entire act, Obama will emerge bruised but victorious from the judicial battle. On the campaign trail, he could then emphasize his efficacy in implementing a key pledge from 2008. The court’s complete invalidation of the law, on the other hand, would deal the president a severe blow, weakening his claims to leadership and the legitimacy of his government safety net. Socialism run amok, tea partiers would crow! Critics on the right and left would be bolstered in their claim that Obama should have abandoned his health care promise to focus on unemployment and the economy. His only strategy after a total judicial smackdown would be to steal a play from FDR’s game plan (minus his ill-conceived court-packing scheme): make the court itself an issue, especially if its Obamacare decision comes at the hands of conservative justices. The president’s face-to-face attack on the justices’ Citizens United decision, at his 2010 State of the Union address, drew criticism from some quarters, but at least he could not be accused of passivity. A loss on health care could also prompt Obama to make Supreme Court appointments a campaign issue. Ginsburg (78), Antonin Scalia (75), Kennedy (75), and Breyer (73) are all well beyond traditional retirement age, and any one of their seats could open up over the next few years. The president could distinguish the types of justices he would nominate with those a Republican would choose.
A loss for Obama before the high tribunal would constitute a mixed blessing for Mitt Romney, should he be the GOP presidential nominee, in light of his own support for health care reform as Massachusetts governor. Of course, he would highlight the president’s failure, especially the PPAACA’s sweeping federal mandate. Romney has called for states to tailor such policies to their citizens’ needs, as he claims was done in the Bay State. Yet Massachusetts mandates that residents carry health insurance. On the other hand, if Newt Gingrich is the nominee, he will also be haunted by the ghost of policy pronouncements past. In 2005 he declared, “I’m actually in favor of finding a way to say, whatever the appropriate level of income is, you ought to have either health insurance, or you ought to post a bond.” An indistinct outcome (some aspects of the law upheld, some voided) would muddle further an already muddled presidential contest. It would also add to the partisanship of voter responses to the law, particularly if the court closely divides along ideological lines. Mixed voting blocs, however, would offer the best result for the court’s image, blunting the sort of partisan fire that it took after Bush v. Gore.
In that decision, five U.S. Supreme Court votes assured Florida’s 25 electoral votes for George W. Bush, awarding him the presidency in 2000. Will a similarly slim and ideologically divided majority determine, albeit more indirectly, the 2012 presidential race? We must wait until late June, when the court, usually a bastion of quiet contemplation, will release its opinions into the noisy chaos of another American presidential campaign. The justices will likely announce this landmark as their last decision of the term — and then disappear for the summer!
|Barbara A. Perry is a Senior Fellow in Presidential Oral History at the University of Virginia’s Miller Center. You can follow her on Twitter @tweetbriar.|