In the recent, extraordinary leak about the internal deliberations of the Supreme Court in the healthcare case, Jan Crawford reports (while leaving ambiguous whether this comes from her leakers) that Chief Justice Roberts was worried about the lack of existing doctrinal support in the challengers’ case. “To strike down the mandate as exceeding the Commerce Clause, the court would have to craft a new theory, which could have opened it up to criticism that it reached out to declare the president's healthcare law unconstitutional. Roberts was willing to draw that line, but in a way that decided future cases, and not the massive healthcare case.”
Professor John Yoo has told the New York Times that, if the story is true, Roberts has misunderstood his job. “His job is not to finesse the place of the Supreme Court in the political world, in which he and most justices are rank amateurs, but to get the Constitution right first and then defend the institution second.” But this occludes the complexities with which Roberts was faced. New constitutional constructions, of the kind that undergirded the challenge to the mandate, raise deep issues about the appropriate role of the judiciary – issues that go far beyond the healthcare case. Roberts was right to be cautious.
Randy Barnett, the intellectual father of the healthcare challenge, usefully distinguishes between constitutional interpretation and constitutional construction. In his book “Restoring the Lost Constitution,” he notes that “there is often a gap between abstract or general principles of the kind found in the Constitution and the rules of law that are needed to put those principles into action. This does not mean, however, that the choice of rules is unguided by these abstract or general principles.” Judges must create new rules in order to give effect to those principles. “Given the limits of interpretation, construction is inevitable and the Constitution would not long survive without it.”
The challenge to the healthcare mandate depends on the action/inaction distinction. That distinction does not appear in the Constitution’s text. It is a construction, unheard of before this case. Barnett’s argument about constitutional construction shows why the objection that his distinction was invented after the bill was voted upon is not necessarily fatal: There must be construction, and no one can possibly anticipate every construction that a court may devise.
There are, however, two lingering problems, and both of them seem to have troubled Roberts.
One is notice. A basic element of legality is that people should know in advance what their rights are. A long-standing problem with common-law decision-making is unfair surprise to the parties. Robert Rantoul complained in 1836 that no one knows what the law is until a judge lays it down, and that this is unjust; “a rule which is unknown can govern no man’s conduct.” That is particularly a problem in constitutional law, where a legislature may undertake an enormous effort to address a pressing problem, only to be told afterward, on the basis of a newly constructed rule, that what they have done is unconstitutional. It is particularly galling if the constitutional obstacle in question is one that could easily have been navigated around at the time of enactment, and political conditions have meanwhile changed so that the problem can no longer be addressed. That is one of the nastiest things about the court’s invalidation of anti-Ku Klux Klan legislation in the late 1800s, which several times reversed the convictions of mass murderers on the basis of novel constructions. The court thought it was promoting liberty, but in fact, by disabling Big Government, it helped bring about the worst oppression of American citizens in our history. The court lectured Congress on the need to rewrite its statutes to comport with constitutional limitations. No rewriting occurred. The political moment had passed, and there was no more federal civil rights legislation until 1957.
This episode has obvious analogies with the ACA litigation. Given the enormous difficulty of passing this statute, and the fact that the Republican leadership has made clear that they do not think that millions of uninsured people are even a problem worth bothering about, the chances of another universal healthcare law in the near future was nil. Common-law decision-making is sometimes justified with the suggestion that there are background norms in the culture that the parties should have known about: Maybe there was no clear rule saying that murderers can’t inherit from their victims before this case, but come on. But the constitutional objections to the ACA were entirely new inventions.
The other problem is bias, particularly pressing where there is discretion, as there certainly is when constitutional construction takes place. Barnett recalls a case he prosecuted, at which a judge who normally was very strict about the scope of a defendant’s cross-examination in a preliminary hearing unexpectedly greatly expanded the scope of cross-examination, over the prosecutor’s objection, uncovering surprising information of which the prosecutors had been unaware. “Although we could not prove it, we were convinced that Judge Devine’s aberrant behavior (and the police officer’s damaging testimony) had been induced by a bribe from the defendant’s lawyer.” Some time later, the judge was convicted and sent to prison for multiple instances of corruption. Trial judges routinely make discretionary calls about the evidence that is admissible. But that has its dangers.
In constitutional law, the Supreme Court necessarily gets to invent new constitutional rules. Barnett is right: Construction is inevitable. But the problems of notice and bias, taken together, present unpleasant possibilities.
Professors Jack Balkin and Sanford Levinson have distinguished two senses in which constitutional law decisions can be political. “High politics,” in which judges promote broad political principles, inevitably influence constitutional law. Construction is guided by one’s broad interpretation of the Constitution’s purposes, and that in turn is likely to be influenced by one’s overall political vision. Because different Americans have different visions, conflict at this level is inevitable. That’s why it matters so much who gets appointed to the Supreme Court. What is improper is the influence of “low politics,” in which judges aim at short-term advantage for the political party that they favor. The danger here is what happened in Bush v. Gore: The courts will use their discretion in a way that favors their political friends. When they do that, the difference between them and Judge Devine is one of degree and not of kind. It is a corruption of the judicial process if the Supreme Court invents new rules just to help the Republicans.
Doubtless the four dissenters did not consciously mean to do that, but people can deceive themselves about their own motives. Isn’t it odd that the mandate, which a few years earlier was the Republican alternative to Clinton’s health plan, suddenly became, once Obama supported it, an intolerable intrusion on liberty? May we not suspect that, if Obama had rejected the mandate and chosen a different mechanism, those wonderfully creative Republicans would have invented a different constitutional rule, which that mechanism would have violated?
This creates a problem for the conscientious judge. If I get to invent new rules that just happen to be politically convenient, how can I (much less everyone watching me) know that I have not become a corrupt political tool? (The liberals on the court didn’t have this problem, because, as Ginsburg’s dissent made clear, the ACA can easily be upheld by straightforwardly applying long-standing law. No invention is necessary.)
It is a rule of law, not merely a prudential bit of advice, that judges should avoid even the appearance of a conflict of interest. That can’t rule out high politics, for reasons I’ve already explained, but it obviously applies to low politics. Roberts was right to worry. The four dissenters made his problem worse by insisting, on the basis of really tortured reasoning, that the entire law, not just the healthcare mandate, needed to be struck down. Roberts feared, perhaps, that the court would be perceived as having done something shameful. The four dissenters appear to be incapable of shame.
Barnett’s vision of the Constitution – a nasty Tough Luck Libertarianism that essentially says that if you’re sick and can’t afford to pay for care, the state is forbidden to help you -- evidently struck a chord in the heart of John Roberts. His opinion is full of enthusiasm for it. In his readings of the Commerce Clause and the Spending Clause, he was willing to adopt sometimes preposterous distinctions in order to make the Constitution conform to that vision. But at the same time, he worried about the too-convenient result. How could he possibly prove to the world – and, perhaps, to himself as well -- that he was not merely a low politician? His solution: Lay down Barnett’s rule for the future, but find a way to keep it from producing a low-political payoff in this case. That way the high-politics holding is purged of the suspicion of low politics. No wonder he is being reviled by those who don’t understand the difference.
Crawford reports that “it was clear to the conservatives that Roberts wanted the court out of the red-hot dispute.” Ordinarily, in cases where a judge’s impartiality reasonably can be questioned, the remedy is recusal: The judge simply takes himself off the case. But that wasn’t a possibility here: Every member of the court had low-politics skin in the game, and the court had to hear the case because the 11th Circuit had struck down the mandate. So what to do? The answer, perhaps, is that the argument for the convenient outcome has to be unusually compelling, so that it will be clear to everyone that low-political bias isn’t doing the work – and Roberts rightly concluded that this challenge did not meet that standard.