With its landmark decisions on health care and immigration, the Roberts Court extricated itself from one of the most politically charged terms in decades.

Some commentators called the health care ruling, in particular, “a defining moment,” a “moment of truth” and a “step back from the brink.” Whatever the label, a conservative chief justice and his more liberal colleagues moved toward each other in surprising ways that kept the Court from becoming a major political issue from now until the November election.

“It was a moment in which the Court was potentially in jeopardy, and that was completely sidestepped,” said Barry Friedman of New York University School of Law. “It turned the spotlight away from the Court. It could have been an enormous issue in the presidential campaign. One has to believe [Chief Justice John Roberts Jr.] did not want that.”

A 5-4 majority, led by Roberts, held that the individual mandate to purchase insurance was a valid exercise of Congress’ taxing power, but Roberts, in a different 5-4 majority, rejected the argument that the individual mandate was constitutional on commerce clause grounds.

David Strauss of the University of Chicago Law School called the health care decision a “defining point avoided” because of the ramifications for the Court if the health care decision had gone against President Obama.

“If you look back a lot further than the Obama administration, the last time you saw the Supreme Court strike down a federal law of this scale and importance was in the 1930s, which led to the confrontation with FDR,” he said. “The chief justice knows all about that, and I think he didn’t want to repeat that.

“He really went as far as he could in saying bad stuff about the Affordable Care Act but then, at the last minute so to speak, voted to uphold it and avoided that confrontation.”

A potential tsunami for the Supreme Court was stirred by the potent combination of a close presidential election campaign, public cynicism about the Court after Bush v. Gore and the Citizens United campaign-finance decisions, and public anxiety over a limping economy.

Whether this is a “defining moment” that will be good for this time only, no one knows. Next term is likely to be a major test again of the justices’ ability to find common ground as they face questions involving race and gay rights.


For now, however, the health care decision is one of those opinions that ranks with Marbury v. Madison, said Douglas Kmiec of Pepperdine University School of Law. “Marshall seemingly gave credit to all of the federalist ideas and yet the bottom line was he found the Court lacked the ability to hear the case. Roberts took a page right out of that handbook — he lionized, praised the limits of federal power that conservatives would applaud, and at the same time, he said, ‘That’s not what Congress relied upon and Congress wasn’t limited to that.’ ”

Besides a John Roberts-John Marshall parallel, historian David Garrow of the University of Pittsburgh said he sees a John Roberts-Owen Roberts connection (Owen Roberts being the justice who switched in 1936 to uphold New Deal legislation in the “switch in time that saved nine”).

“I think it’s hard to avoid concluding that there was a political attraction for John Roberts to avoid the appearance, if not the reality, of a big interbranch confrontation,” Garrow said.

Kmiec agreed, adding that the Court came close to another Bush v. Gore. “In essence, I think the Court prudently recognized that by putting themselves at the center of the debate, the president would have been left with making an argument against the Court and that would have been unseemly,” Kmiec said. “[Presidential candidate Mitt] Romney is now left with the argument he doesn’t like the policy.”

Although Roberts was the key to the outcome in both the health care and immigration decisions, Court scholars and others noted that it was important to recognize that justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan played instrumental roles as well.

Breyer and Kagan joined Roberts’ holding that the Medicaid expansion in the health care law unconstitutionally coerced the states into participating in the program.

This was particularly surprising given Breyer and Kagan’s comments to the states’ advocate, Paul Clement of Bancroft, during arguments. Kagan said at that time:

“So that really reduces to the question of why is a big gift from the federal government a matter of coercion? In other words, the federal government is here saying, we are giving you a boatload of money. There are no — there’s no matching funds requirement, there are no extraneous conditions attached to it, it’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.”

There already were five votes without Breyer and Kagan to find the expansion coercive. Breyer and Kagan joined an opinion that for the first time since 1936 found a problem with Congress’ exercise of its spending power, said Neil Siegel of Duke Law School.

“It seems like there is a desire on both sides to forge a working coalition,” he said.

“They are concerned not just about their own view of the law but the Court’s institutional position.”

Although many former clerks insist there is no “horse-trading” among the justices, there is a desire among some, notably Breyer and perhaps Kagan, to find play in the joints if others can find it, too. “[Kagan] seems to have a happiness factor and comfort level” with her conservative colleagues, Garrow said. “Kagan is an important presence for the long term — much more than a one-ninth presence.”

And although Ginsburg and Soto­mayor would have upheld the Medi­caid expansion in its entirety, they joined Roberts, Breyer and Kagan in Roberts’ remedy for the constitutional violation — striking down the threat to withhold existing Medicaid funds from noncomplying states.


Besides Roberts’ decision upholding the health care insurance mandate on the grounds of Congress’ taxing authority, the other major surprise to many following the case was Justice Anthony Kennedy, who joined a dissent that would have struck down the entire law.

“I wasn’t shocked Kennedy decided the mandate was unconstitutional,” Chicago’s Strauss said. “It seems kind of rash and imprudent to want the whole law struck down.”

Kmiec, too, was surprised by Ken­nedy’s aggressive position. “He was in fact the voice of this type of institutional protection in the past. He’s the one Justice [John Paul] Stevens always used to rely upon for cooler heads to prevail. I think he was convinced the commerce power here was so extraordinary that he didn’t focus on the full extent of the tax issue.”

Kennedy, however, did write the 5-3 decision in the Arizona immigration challenge — the second politically charged case of the term.

The decision pre-empted three core provisions of Arizona’s anti-immigration law but upheld the so-called “show me your papers” requirement. Clearly concerned about the latter provision, Breyer and Sotomayor intensely questioned Arizona’s lawyer — Clement — about it during arguments. Breyer’s questions led to answers by Clement that Kennedy subsequently used to uphold, but cautiously, that requirement.

Both Breyer and Sotomayor, along with Roberts and Ginsburg, joined Kennedy’s opinion — another sign of movement from both sides, noted some Court scholars.


In the end, those scholars and others seem to agree that it is difficult to predict whether those two rulings and Roberts’ role in them signals a new era in the Roberts Court.

“It was a signal moment for the Court and an incredibly important decision, but I don’t think the ground is shifting,” Friedman said. In fact, he suggested, “What this decision does is allow the Court to return to business as usual next term” with 5-4 splits in big cases.

Duke’s Siegel added, “Roberts and several of the liberals have forged a working coalition here. It’s not likely you can say that’s going to happen when they get to affirmative action or the Defense of Marriage Act. Roberts is a real conservative.”

Marcia Coyle can be contacted at mcoyle@alm.com. Tony Mauro can be contacted at tmauro@alm.com.