Bench Memos

Why Liptak Is Wrong on Roberts

Adam Liptak’s New York Times piece last Sunday, “Health Care Act Offers Roberts a Signature Case,” an attempt at deciphering Chief Justice Roberts’s thinking on the current health-care-law litigation, presents the mainstream media’s conventional wisdom on this topic: mainly that the only reasonable result is for the Court to uphold the law. No one can really know Chief Justice Roberts’s thoughts, and as my JCN colleague Carrie mentioned, justices chafe at “being lectured like schoolchildren about the dire consequences of their decisions.” However, it is worth setting the record straight after Liptak’s distortions, as this “conventional wisdom” is sure to continue.

Liptak’s characterizes Chief Justice Roberts as not intensely focused on federal-power questions, confirmed by his assent to U.S. v. Comstock, a case that gave Congress power to continue the civil confinement of sex offenders past their sentence’s expiration. This is inaccurate, as Comstock did not provide a clear opportunity to address important federal-power questions. Although Comstock upheld the confinement statute under the Necessary and Proper Clause, a clause that allows Congress to exercise power not authorized by a federally enumerated power, the opinion maintained structural limitation on that clause, including that it is not an independent grant of authority. As JCN argues in our health-care-law amicus curiae brief, filed on behalf of Speaker Boehner, this limitation refutes the notion that the Necessary and Proper Clause authorizes the individual mandate.

Perhaps Chief Justice Roberts has not yet publicly demonstrated a strong interest in delineating federal power. However, this could be for a lack of opportunity, and the Court has shown a tremendous interest in the current health-care litigation, scheduling a historic six hours for oral arguments. Furthermore, as a D.C. Circuit appellate judge in the case Rancho Viejo v. Norton, Roberts did express skepticism towards an overly expansive interpretation of the Commerce Clause.

Liptak also implies that Chief Justice Roberts might not strike down the law because he “views himself as a steward of the court’s prestige and authority, and has called for incremental decisions from large majorities rather than broad but sharply divided rulings.”

The argument’s premise itself is problematic; “prestige” should not influence a decision’s final outcome. How could a court possibly evaluate prestige? Even if it could, why does Liptak ignore public-opinion polls that show that most Americans believe that the individual mandate is unconstitutional?

Even still, Liptak’s argument is incoherent. Liptak himself has contradicted his current characterization of Chief Justice Roberts. In a June 2009 piece he said that Chief Justice Roberts has laid “the groundwork for bold changes that could take the court to the right . . .“ (emphasis added). The next year, Liptak proclaimed that under Chief Justice Roberts, “Judicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase.” (emphasis added).

Liptak’s also seems to suggest that the Court can only uphold or strike down the entire bill. This characterization, omitting discussion of both the individual mandate and “severability,” (a court’s evaluation of how much of the bill to strike down if any part is unconstitutional), presents a very incomplete picture. If the Court did not want to strike down all of the law, it could still follow the Eleventh Circuit and strike down only the mandate, or agree with the DOJ and strike down the mandate and some insurance regulations.

Finally, Liptak references a 1936 case Carter v. Carter Coal Co., as the last time the Court has struck down a major piece of economic legislation. Assuming Liptak is correct, it is because soon after Carter, the Court greatly expanded the Commerce Clause’s reach, and it is now difficult for legislation to run afoul of the Clause. Furthermore, as we mentioned in our individual-mandate Supreme Court amici brief, no Congress has ever used the Commerce Clause to authorize such an expansive government intrusion as the individual mandate. Perhaps the Supreme Court has not struck this type of legislation since then because nothing of that nature has so greatly tested the limits of the Commerce Clause’s reach until now? Were the Court to rule against the health-care law, President Obama and the Democratic-controlled Congress, not the Court, should be blamed for superseding their constitutional authority.


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