Regardless of the outcome of the challenge to the new health care law, three days of arguments last week may have cemented the view of the Roberts Court as a willing and aggressive player in the American political conversation.

After more than six hours of arguments on the Patient Protection and Affordable Care Act, advocates on both sides were surprised at how quickly the questioning seemed to break down on ideological lines in spite of the Court’s preferred self-­image as neutral and apolitical.

Some justices questioned Congress’ ability to remedy problems with the law if key provisions were severed; some challenged economic assumptions underlying the law, pointing to amicus briefs by opponents, despite being urged by the government to stick to the text and legislative history.

“One can’t walk away from the last three days thinking this is a particularly timid court or one sensitive to the passive virtues,” said Stephen Vladeck of American University Washington College of Law. “It’s all about the aggressive virtues when it comes to these kinds of questions. Whether that’s for better or worse, it depends on your perspective.”

The health care case, he added, has to be considered alongside the ­justices’ decisions to hear the hot-button immigration challenge by Arizona in April and affirmative action in higher education next term, as well as their controversial Citizens United campaign finance ruling in 2010. “This is a Court that I think has decided that there is nothing too big for it,” Vladeck said.

The cases are “more a reflection of where the country is and what the Court gets drawn into,” said Michael Greve of the conservative American Enterprise Institute (AEI). “What is characteristic of the Court is a perfect willingness to engage big issues and then to exercise great care with respect to remedies and to the autonomy of the branches.”


If the Court believes the public’s image of it is partisan after the arguments, “in the conference room, Chief Justice Roberts may say, ‘This is the picture we are putting out there and we have to be careful not to have another Bush v. Gore.’ The other justices may say, ‘We don’t want to do that again,’ or they may say, ‘We really don’t care,’ ” said Lisa McElroy, who teaches a Supreme Court seminar at Drexel University Earle Mack School of Law.

The federal courts of appeals have shown there are ways to talk about constitutional views that are clearly distinct from what their political views may be, said Neil Siegel of Duke Law School. “I didn’t see as much of that in the [health care] arguments as I would have liked,” he said. “I saw some in Chief Justice [John] Roberts and Justice [Anthony] Kennedy.”

What he saw in Roberts and Kennedy, he said, were questions to both sides, questions that reflected justices who were struggling with the issues, not going through the motions after having made up their minds.

“I didn’t see that at all from [Justice Antonin] Scalia or very much from [Justice Samuel] Alito,” Siegel said. “I saw it more from the liberals who were asking tougher questions of the government than I saw Roberts and the conservatives asking of Paul Clement [representing the challengers].”

No ideological divide emerged in questioning on the first day of arguments over whether the Anti-Injunction Act was a jurisdictional bar to the justices’ review of the constitutionality of the so-called individual mandate. To the surprise of many, the justices generally appeared to have little sympathy for arguments that the act stopped the case in its tracks even though those arguments persuaded a panel of the U.S. Court of Appeals for the 4th Circuit and Judge Brett Kavanaugh of the D.C. Circuit.

“Monday may have been the most interesting of the three days,” American’s Vladeck said. “You had a [circuit] court saying this act was a prudential constraint and the Supreme Court wholly uninterested in it.”

But the ideological divide in the questioning was evident on the second and third days as the justices took up whether Congress exceeded its authority under the commerce clause by enacting the individual mandate, and whether, if the mandate is unconstitutional, only the mandate should be severed from the law.


From Justice Stephen Breyer’s recounting of key commerce clause decisions upholding the regulation of wheat and marijuana grown for home consumption as part of a comprehensive regulatory scheme to Justice Ruth Bader Ginsburg’s analogy of the health care act to the Social Security Act, the Court’s four moderate to liberal members appeared to embrace the government’s argument that the mandate was part of a comprehensive scheme to regulate the financing of health care.

But the mandate seemed in serious jeopardy when Kennedy suggested that the government was altering its relationship with the individual “in a very fundamental way,” and the chief justice said that requiring people to participate in a market means there are no limits on the commerce power.

Day two was a good day for conservatives, several conservative legal bloggers said. But the unprecedented import of a ruling striking down the mandate was obvious to conservatives as well as ­liberals.

If the mandate is struck, “this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting president in ways that were unexpected based on precedents at the time the president acted,” blogged conservative constitutional scholar Orin Kerr.

Duke’s Siegel said, “At the very least, the fact that there’s a very good chance that they’re going to strike down some or all of this law suggests to me that talk about humility, modesty and a limited role is not appropriate when talking about the Roberts Court. We’re talking about the Court invalidating on federalism grounds a very consequential federal law. You would have to go back to FDR’s confrontation with the Supreme Court to find a law so consequential being invalidated.”

Two conflicting approaches to the severability issue also emerged from the ideological divide on the third day. Justices Sonia Sotomayor and Ginsburg indicated that judicial restraint was served by leaving to Congress the task of dealing with the remainder of the law if the mandate were severed. But Scalia and Kennedy said it could be a greater wielding of judicial power to leave a shell of a law that imposed an uncertain risk of enormous financial burdens on insurance companies.

During this 90-minute argument, Alito turned several times to an amicus brief on behalf of economists opposing the law to challenge Deputy Solicitor General Edwin Kneedler’s severability argument. And Kennedy also sought to assess the economic fallout on insurance companies if the government prevailed. Kneedler said they should look only to the law’s text and legislative history for whether Congress intended the bulk of the law to stand if the mandate were struck down.

“What struck me was how deeply the argument against the law plunged the justices into issues of economic and social policy that the Court is ill-equipped to manage,” said Walter Dellinger of O’Melveny & Myers, a strong supporter of the law.

But AEI’s Greve said, “What impressed me most on the severability issue is how desperately and earnestly all were angling for some kind of coherent theory and not one of these lawyers was able to give them it. Justice Alito asked Paul Clement directly, given his initial position [the entire law must fall] is really extreme, ‘Do you have a fallback?’ That’s not some right-wing ideologue with heels dug in but someone struggling.”

On day three, the justices also considered whether the law’s Medicaid expansion unconstitutionally coerces the states into participation. No lower court accepted the states’ coercion argument.

The fact that the Supreme Court agreed to hear the argument and some justices, even Roberts, saw a potentially serious problem with the expansion “bespeaks the aggressiveness that I think is the real take-away point for me this week,” said American’s Vladeck.


At the end of the three days, some legal experts still saw room for compromise despite the obvious divides on some issues.

The Court will find it has jurisdiction, Greve predicted. It rejects the challengers’ positions on Medicaid and severability. It then strikes down the mandate because it has been assured there are multiple tools in the law to achieve many of Congress’ objectives.

“I wouldn’t be the least bit surprised if it came out that way and it would be perfectly consistently with the chief’s approach,” he said.

Or, Harvard Law School’s Laurence Tribe said, “I think we learned of a possible compromise position in which the mandate would be upheld on its face, leaving open the possibility of later holding it unconstitutional as applied to challengers who could prove they would never purchase health care, a possibility raised by Justice Kagan.”

And, there is Kennedy. “He appears more concerned about his, and his Court’s, public image and legacy than many of his colleagues, and he knows that a single vote can ruin a long-standing reputation,” said Bruce Allen Murphy, Lafayette College historian and author of several books on the Court.

With his legacy in mind, Murphy asked, will Kennedy want to be remembered for having prevented some 35 million people from getting adequate health care insurance protection or for protecting them by upholding the law?

“I believe Kennedy, and thus at least five members of the Court, will vote with an eye toward their image in history, in upholding Obamacare,” the historian predicted. “The pivot point for this decision, though, will be more on politics than the law.”

Marcia Coyle can be contacted at Tony Mauro can be contacted at