A Journal of the Carl Albert Congressional Research and Studies Center
The Roberts Court
Winter 2013
The Carl Albert Congressional Research and Studies Center Established in 1979 by the Oklahoma Regents for Higher Education and the Board of Regents of the University of Oklahoma, the Carl Albert Congressional Research and Studies Center is a nonpartisan institution devoted to instruction and scholarship related to the United States Congress. The mission of the Center is defined broadly in terms of academic inquiry into the history, structure, process, personnel, and policies of the Congress, and the relationship between the Congress and other agencies and actors in the American political system. In the most general sense, the Center is concerned with the problems of modern representative democracy, as exemplified by the Congress. In pursuit of this goal, the Carl Albert Center performs four principal functions. The first is the development of academic programs in congressional studies at both the graduate and undergraduate levels, which are sponsored in cooperation with the University of Oklahoma’s Department of Political Science. At the graduate level the Center offers a four-year, specialized fellowship program leading toward the doctoral degree. Each Fellow receives a fully financed program of study. At the undergraduate level the Center sponsors a research fellowship program designed to foster collaborative research between faculty and undergraduates. Second, believing that professional research is the foundation upon which its academic programs rest, the Center promotes original research by faculty members and students into various aspects of politics and the Congress. The Center encourages
publication and provides its faculty and students with institutional and financial support to travel for research purposes and to present research findings at professional conferences. The third function of the Center is the development of resource materials related to the Congress. The Center’s Congressional Archives, which are among the largest in the country, include the papers of more than fifty former members of Congress. Such prominent Oklahomans as Speaker Albert, Dewey F. Bartlett, Page Belcher, Mickey Edwards, Glenn English, Robert S. Kerr, Sr., Fred Harris, Steve Largent, Dave McCurdy, Mike Monroney, Tom Steed, Mike Synar, and J. C. Watts have donated their papers to the Center along with such distinguished non-Oklahomans as Dick Armey, Helen Gahagan Douglas, and Carl Hatch. Fourth, the Center actively strives to promote a wider understanding and appreciation of the Congress through various civic education programs. The Center sponsors conferences, speakers, television appearances, and the biennial Julian J. Rothbaum Distinguished Lecture in Representative Government. The Center also publishes Extensions, a journal which focuses on issues related to the Congress. Taken together, these diverse aspects of the Carl Albert Center constitute a unique resource for scholarship and research related to the United States Congress.
Winter 2013
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A Journal of the Carl Albert Congressional Research and Studies Center
Winter 2013
Contents Director and Curator Cindy Simon Rosenthal Associate Director Glen S. Krutz Regents’ Professor Ronald M. Peters, Jr. Managing Editor and Assistant to the Director LaDonna Sullivan Assistant Director for N.E.W. Leadership Lauren Schueler Archivist Robert Lay
National Advisory Board David Albert Richard A. Baker David L. Boren John Brademas Richard F. Fenno, Jr. Joseph S. Foote Jess Hay Joel Jankowsky Thomas J. Kenan Dave McCurdy Frank H. Mackaman Thomas E. Mann Chuck Neal Michael L. Reed Catherine E. Rudder James C. Wright, Jr.
Editor’s Introduction The Roberts Court . . . . . . . . . . . . . . . . . . . . . . . . 2 Ronald M. Peters, Jr.
Special Orders The Roberts Court, Seven Years In . . . . . . . . . . . . 5 Thomas M. Keck Judicial Independence and the Roberts Court . . . 11 Justin Wert Toward a New “Careful Scrutiny” of Congressional Power: The Dissent in the Health Care Case . . . . . . . . . . . . . . . . . . . . . . . . 16 Harry F. Tepker
For the Record News from the Center . . . . . . . . . . . . . . . . . . . . 22 LaDonna Sullivan Remembering Ann Bartlett . . . . . . . . . . . . . . . . 25
Hon. Tom Cole 4th District, Oklahoma ex officio
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ON THE COVER: John G. Roberts, Jr., Chief Justice of the United States. (Associated Press photo)
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Extensions is a copyrighted publication of the Carl Albert Congressional Research and Studies Center. It is published twice each year and distributed free of charge. To receive copies of Extensions, or to obtain permission to reprint, please contact the managing editor, LaDonna Sullivan, at (405) 325-6372 or e-mail to ljsullivan@ou.edu. Extensions may also be viewed on the Center’s web site at www.ou.edu/ carlalbertcenter.
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Editor’s Introduction
The Roberts Court Ronald M. Peters, Jr. “Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority” (Brutus).1 In 1788, the anti-federalist Brutus (presumed to be Robert Yates of New York) saw the federal judiciary as the probable vehicle of the federal annihilation of state autonomy under the proposed Constitution. The federal courts, and in particular the Supreme Court, would be driven by ambition, as are all political actors. As the justices exercised their power to interpret the Constitution, they would seek to expand the institutional power of the judiciary at the expense of the co-equal branches of the federal government and at the expense of the state governments, whose courts would be made subordinate to the federal bench. The Court’s history offers evidence to support Brutus’s prediction. The Marshall Court of the early 1800s certainly did seek to establish federal supremacy over the states. In the late nineteenth and early twentieth centuries, a conservative Supreme Court rejected many progressive state laws as infringements upon the property rights of corporations (taken as persons under the Fourteenth Amendment). In Lochner v. New York (1905) the Supreme Court struck down a New York statute regulating the number of hours employees could work in bakeries. The majority found a right of contract implicit in the Fourteenth Amendment’s Due Process Clause. In dissent, Justice Oliver Wendell Holmes said famously that the Constitution does not enact Herbert Spencer’s social statics, accusing the Court majority of reading into the Constitution its policy preferences. The Lochner case became an appellation for the era. In Hammer v. Dagenhart (1918) , the Court struck down a federal child labor law, thus restricting the application of the Commerce Clause while deferring to the states under an expansive view of “dual federalism.” The Lochner era reached its apogee when in Schechter v. U.S. (1935) the Court struck down the First New Deal’s National Industrial Recovery Act, limiting 2
congressional power. The Court abandoned Lochner in West Coast Hotel v. Parrish (1937) in upholding the Second New Deal. The “switch in time that saved nine” by Justice Owen Roberts (no relation to the current chief justice) launched the Court in a more liberal direction. After 1937, the Commerce Clause was given broad reach by the Court. A foundational case was Wickard v. Filburn (1942) in which the Court held that a farmer growing wheat for his own consumption on his own property was subject to federal regulation. In the late 1940s, the Vinson Court began to move away from enforcing property rights, and in the direction of enforcing civil rights under the Fifth and Fourteenth Amendments. The Warren Court carried this mission forward, leading to an era of judicial activism, constraining the states in the domain of civil rights while allowing the Congress great latitude in economic matters. Brown v. Board of Education of Topeka (1954) was the archetypal case. One might then conclude that the Court, under both conservative and liberal regimes, has sought to expand its power just as Brutus anticipated, sometimes at the expense of the Congress, sometimes at the expense of the states, sometimes both. But what is happening now? Have we entered an era in which the Court will seek to reign in the Congress and return more autonomy to the states? Will the Lochner Era concepts of corporate persons and property rights arise anew? If so, does this reflect a return to an older jurisprudence now recovered, or to a new jurisprudence born in reaction to the liberal activism of the Warren and Burger Courts? Or are these legal questions tangential to the real game now on, a conservative political assault on liberal bastions that have been entrenched for many decades? The answers to these questions will likely reside in the path taken by the Court under the leadership of Chief Justice John Roberts. In the wake of National Federation of Independent Businesses (NFIB) v. Sebelius (2012), in which the Court upheld the Affordable Health Care Act (ACA), it was held by some commentators that the chief justice had placed his stamp on the court, making it now the Roberts Court in substance as well as in name. Roberts stole the mantle of the “deciding vote” from Justice Anthony Kennedy in one of the Court’s most important cases in years, and he did so in a way that clarified his strategic (although perhaps not his jurisprudential) approach. Chief Justice Roberts made three key decisions in NFIB. First, he sided with the conservative wing of the court in Winter 2013
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declaring the ACA’s indistates.5 This is why conservidual health care mandate vatives are appalled by it. an unconstitutional exercise But might NFIB harbinger t is reasonable to assume that as of the Congress’s commerce more radical doctrinal power, on the grounds that development in the future? Rehnquist’s successor, Roberts aims to further the government could not Roberts finds himself in compel commerce in order an interesting position. On his mentor’s project. But how far might he go to regulate it. Second, the one hand, he now has in limiting congressional power? however, he held that the the opportunity to move government could still the Court and the country impose a penalty on those decisively in the direction and to those who feared his jurispruwho refuse to obtain health conservatives have long dence. But the larger historical context care insurance, regarding this penalty as sought; on the other hand, he has come suggested that other forces might be at a constitutional exercise of the governto office at a moment when the Court’s play. In an earlier article, published in ment’s taxing power. Finally, he sided legitimacy is sometimes questioned. His The New York Times Magazine in 2005, with a broader coalition of liberal and challenge, then, is to strike a balance Rosen called forth the specter of a judiconservative justices to weaken the law’s between his institutional obligation and cial poltergeist, ghosts of a long-buried expansion of Medicaid coverage, on the his jurisprudence. jurisprudence now arising to haunt the grounds that the penalty imposed on This issue of Extensions offers three Court.3 At the center of this awakening non-complying states (loss of all federal articles exploring Roberts’s leadership was the “Constitution in Exile” moveMedicaid funding) was too coercive. of the Court. Taken together, they ment, brought forward by libertarians This opinion may not enter the panshed light on the manner in and extent who aimed to reconstitute the federal theon of jurisprudential achievement, but to which the Chief Justice has sought judiciary from among their own ranks. it appears well designed to further Robto balance his dual obligations. In Lochner relied on an implied right of erts’s strategic aims. He avoided strik“The Roberts Court, Seven Years In,” contract to set limits on the power of ing down President Obama’s signature Tom Keck frames the issue of Roberts’s both Congress and the state governlegislative achievement while articulating declared intention to bring the Court ments. These scholars believe that, in principles that might enable the Court to into balance. If that is his intention, we moving away from Lochner’s limitations restrict federal power in future commerce would expect to find him on occasion on the power and reach of government and power of the purse cases. He placed voting against his conservative brethren, after 1937, the Court had sanctioned himself at the center of this achievement and siding with the four more liberal legislative intrusions on basic liberties rather than Justice Kennedy. And he justices against positions taken by his and property rights. The Warren Court avoided a partisan split on the Court in more conservative colleagues. In examin particular had enabled the subordinaits most important case in years. All in ining cases with clear constitutional tion of the states to federal authority in all, quite crafty. implications from the Court’s dockets Commerce Clause jurisprudence, while But what do we learn about Chief Jusfrom the beginning of Chief Justice imposing a harness on state autonomy in tice Roberts and his court? In 2007 jourRoberts’s tenure to the end of the 2012 the area of civil rights and liberties. All nalist Jeffrey Rosen published an article term, Keck traces a generally consistent of this needed to be reversed. Signifiin The Atlantic in which he reported an tendency on Roberts’s part: he sides with cantly, Rosen listed Roberts among the extended interview with Chief Justice the conservatives most of the time. In rising jurists favored by the revivalists. Roberts.2 At the outset of his first term two cases decided during the final week The “Constitution in exile” perspecin office, Roberts stressed to Rosen a of the 2012 term (dealing with the Aritive embraces states’ rights as well as determination to move the Court away zona immigration statute and the ACA), personal liberty. Libertarians want to from partisanship and the appearance Roberts jumped to the liberal side. Keck limit the power of government simply. of it. He wanted to avoid 5-4 decisions assesses the implication of this switch in Federalists want to shift power from arrayed along ideological or apparently time that saved Obamacare. the federal government to the states.4 partisan lines on important cases. His Justin Wert, in “Judicial IndepenChief Justice Roberts clerked for Chief strategy would be to seek to narrow the dence and the Roberts Court,” analyzes Justice William Rehnquist. Rehnquist’s scope of decisions, to discourage multiple Roberts’s decisions through the prisms ambition was to return power to the concurring and dissenting opinions, and of several established theoretical framestates. It is reasonable to assume that as to search for common ground where it works. Political scientists have sought to Rehnquist’s successor, Roberts aims to could be found. He said that the legitiexplain judicial decisions as straightforfurther his mentor’s project. But how far macy of the Court had been damaged by ward applications of the law, as reflecting might he go in limiting congressional its many narrowly decided cases. The the attitudes (policy preferences) of the power? His holding in NFIB itself actulegitimacy of the Court, he suggested, judges, as strategic choices in the process ally appears to have placed minimal was more important than the outcome of of coalition formation (getting to five limitations on the power of the federal any individual case. votes), and as reflections of the larger government and offered little in the way This tempered outlook offered hope to regime context within which the courts of new constitutional protections to the court-watchers who shared his concerns operate at any point in time. In apply-
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Can the government make you eat broccoli? ing these constructs to key decisions of the Roberts Court, Wert finds them each unable to satisfactorily explain Roberts’s opinion in NIFB. He then turns to yet another theoretical framework, the historical-institutional approach to find the best explanation. Roberts, it seems, may really care about the institutional well-being of the Court after all. Of course, this implication is derived only from NFIB. Nonetheless, Roberts and his conservative brethren may yet be prepared to break new ground in constitutional law. In “Toward A New ‘Careful Scrutiny’ of Congressional Power: The Dissent in the Health Care Case,” Harry F. Tepker gives close inspection to the joint dissent in NFIB and finds embedded in it a potentially new standard for applying federal power to individuals and the states, “careful scrutiny.” Readers are likely familiar with the “strict scrutiny” (or compelling state interest) test that the Court applies to fundamental civil rights and civil liberties. Where these foundational values are at stake, the federal and state governments encounter a strong burden of proof. Historically, the Commerce Clause has not been subject to anything like strict scrutiny, at least not since the Court gave up the ghost of Lochner in 1937. More recently in Gonzales v. Raich (2005) the federal government’s power to outlaw backyard growth of marijuana was upheld against a California statute that made it legal to grow marijuana for medicinal purposes. In the same year, in Kelo v. City of New London, a local government’s right of eminent domain was sustained as it sought to seize and
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clear residences to enable a private development. In only two relatively recent cases (prior to NFIB) had the Court sought to set a limit on the federal government’s commerce power. In United States v. Lopez (1995) the Court struck down a federal statute seeking to ban firearms in proximity to public schools. In 2000 in the case of U.S. v. Morrison, the Court struck down provisions of the federal Violence Against Women Act. In both of these cases the Court found that the behaviors governed by the statutes were not really connected to interstate commerce. In NFIB, however, the nexus between the law and the nation’s commerce was evident. The problem identified in the joint dissent was that persons who had not purchased health insurance and would be required by the ACA to do so, had not “entered commerce” and would not do so until they bought insurance or sought uninsured care for which they could not pay. The dissenters applied “careful scrutiny” to the linkage between the law’s objectives and the stream of commerce, concluding apparently that the government would have the right to compel a person to purchase health insurance only at the point of seeking otherwise uncompensated care.6 Tepker raises the question of whether this nascent “careful scrutiny” test is likely to be advanced in other contexts, taking an upcoming voting rights case as an example. More generally we might ask: if careful scrutiny would strike down a statute addressing one sixth of the nation’s economy, then what other statutes might fall under its gaze? Taken together, these three articles offer alternative perspectives on the Roberts Court and the Chief Justice. They also offer readers some guideposts by which to gauge the Court’s decisions going forward. Will they fit the ideological pattern that Keck describes? Will Chief Justice Roberts demonstrate a sustained interest in the institutional health of the Court, as Wert asks? Will a conservative majority seek to reverse decades of law and precedent in corral-
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ling congressional power, as Tepker infers the joint dissenters might prefer? Brutus, of course, predicted that the Court would want most to enhance its own power. He thought that its best path forward was to ride the crest of federal power as it washed over the states. Yet today the Court might flex its muscles best in restraining rather than advancing the federal government. The NFIB joint dissenters seem inclined to roll back the tide. But in NIFB, Roberts chose to protect the Court itself. Brutus predicted that the Court would always seek to expand its power in order to hand it down to its posterity. But the Chief Justice may recognize that handing down the power of the Court to its posterity may call for occasional restraint. Legitimacy, after all, is a primary source of power. Notes
1. Brutus, No. 11 (New York Journal, January 31, 1788), http://www.constitution.org/afp/ brutus11.htm. 2. Jeffrey Rosen, “Roberts’s Rules,” The Atlantic, January-February 2007. 3. Jeffrey Rosen, “The Unregulated Offensive,” New York Times Magazine, April 17, 2005. 4. The nomenclature is confusing. In the beginning, federalists supported ratification of the Constitution and a strong national (federal) government. Anti-federalists were suspicious of the national government and valued states’ rights. Today, the Federalist Society lawyers present themselves as libertarians who believe that the balance of power should be reconstituted to return autonomy to the states. The Society’s web site features a video by Chief Justice Roberts at http:// www.fed-soc.org/aboutus/. 5. This is because it seems unlikely that the federal government will seek to mandate other commercial actions and because Congress can easily find ways to influence the states by increasing the carrots or minimizing the sticks. In the case of the ACA, for example, Congress could simply have ponied up all the money or it could have lessened the penalty for non-compliance. See: Paul Starr, “Between the Lines,” The New Republic, July 18, 2012. 6. The dissenters did not explain how this insurance scheme could be made to work, although Justice Scalia seemed to suggest at oral argument that the problem could be solved by repeal of the federal statute that requires hospital emergency rooms to treat anyone who seeks their care.
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The Roberts Court, Seven Years In Thomas M. Keck Syracuse University
C
hief Justice John Roberts has long claimed that one of his chief priorities is to maintain and renew the public’s faith in the Supreme Court as a venue of non-partisan legal decision-making. As he famously put it during his confirmation hearings in Fall 2005, judges are like umpires. Testifying before the Senate Judiciary Committee, he insisted that as a judge, his job was simply to call balls and strikes, not to root for either team. Like an umpire, he would not write the rules, but merely apply them. Since that time, the Chief’s critics have often complained that he seemed to care more about vindicating a partisan constitutional vision than he did about preserving the Court’s nonpartisan image. For the first several years under his leadership, after all, the Court’s most notable exercises of judicial authority almost always protected constitutional rights favored by conservative Republicans. In Parents Involved v. Seattle School District (2007), his Court held that the sort of race-conscious integration efforts that federal courts in the early 1970s regularly required public school districts to adopt were now constitutionally forbidden, even where elected school boards sought to adopt them voluntarily. In Citizens United v. Federal Election Commission (2010), his Court held that the landmark McCain-Feingold law (and indeed a full century of federal election law preceding it) had unconstitutionally infringed the free speech rights of corporations. In District of Columbia v. Heller (2008), his Court struck down a gun control law on Second Amendment grounds for the first time in the Court’s history, and two years later, it did so again in McDonald v. Chicago (2010). Each of these decisions was issued by a 5-4 vote, with Chief Justice Roberts in the majority.
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Thomas M. Keck is the Michael O. Sawyer Chair of Constitutional Law and Politics and Chair of the Department of Political Science at Syracuse University’s Maxwell School of Citizenship and Public Affairs. He is the author of The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago: University of Chicago Press, 2004); “Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?” (American Political Science Review, May 2007); and “Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights” (Law & Society Review, March 2009). He is currently writing a book that will examine the role played by courts in settling polarized political disputes over abortion, affirmative action, gay rights, and gun rights during the Clinton, Bush, and Obama eras. Professor Keck would like to thank John Ryan for outstanding research assistance on this article. Email address for Professor Keck is tmkeck@maxwell.syr.edu.
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“G
iven this record, it is not surprising that
have complained that he hoodwinked the
If Roberts
with his
many critics on the left
2005
testimony about umpires.
had meant what he said back then, he would eventually have to demonstrate
that commitment by voting against type.
Meanwhile, when presented with claims for the judicial defense of constitutional rights typically associated with liberal Democrats, Roberts and his Court have regularly declined to step in. Despite the Court’s ringing endorsement of free speech in Citizens United, for example, the Court came down on the side of government suppression in cases involving a humorous pro-drug banner displayed at a public school event (“Bong Hits for Jesus”) and, more consequentially, a federal ban on material support for terrorist organizations that the George W. Bush administration extended to cover even “coordinated teaching and advocacy furthering the designated organizations’ lawful political objectives.”1 Likewise, while Roberts and his conservative colleagues are correct that the right to bear arms was of central importance to the founding generation, they have paid much less heed to the prohibition on suspicion-less police searches, which was equally central to that generation. In particular, the Court very nearly abandoned the Fourth Amendment exclusionary rule in Hudson v. Michigan (2006), with Roberts joining three colleagues to advocate such a momentous shift and Justice Kennedy providing a fifth vote for creating a large exception to the rule’s operation. On the long-polarized issue of abortion, Roberts appeared to have brokered some measure of détente in Ayotte v. Planned Parenthood (2006), but the Court re-splintered into its familiar 5-4 divide the following year in Gonzales v. Carhart (2007). Ayotte was a unanimous decision that ducked the central constitutional issues at stake; Carhart was a polarized holding that the federal government was free to ban so-called partial-birth abortion, even where such a procedure (technically known as “dilation and extraction”) was medically necessary to preserve the pregnant woman’s health. Similar examples could be provided
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Senate
Roberts’s
”
regarding voting rights, separation of church and state, and a number of other constitutional rights in the liberal Warren Court tradition, but the pattern should by now be clear. Given this record, it is not surprising that Roberts’s many critics on the left have complained that he hoodwinked the Senate with his 2005 testimony about umpires. If Roberts had meant what he said back then, he would eventually have to demonstrate that commitment by voting against type. If he were really committed to preserving the Court’s image as a neutral legal arbiter, what could do more to enhance that image than voting – at least occasionally – in ways that cannot easily be characterized as partisan justice? Alternatively, if he never voted to defend constitutional rights favored by liberal Democrats and never voted to allow restrictions on constitutional rights favored by conservative Republicans, then how could anyone take his professions of neutral umpiring seriously? Through almost seven full annual terms, Roberts did not do either of these things very often, and when he did do them, the cases were relatively insignificant. But in the final week of his seventh term, he crossed over twice, and the occasions were big ones. Party, Policy, and Duty on the Court As I have argued elsewhere, the Court’s exercises of authority do not always reflect partisan or ideological dynamics.2 Indeed, some of the Roberts Court’s most notable exercises of judicial review appear to reflect institutional conflicts between courts and legislatures rather than (or at least more than) partisan conflicts between Democrats and Republicans or ideological conflicts between liberals and conservatives. Consider Snyder v. Phelps (2011). When Fred Phelps and the members of his Westboro Baptist Church began
picketing the funerals of U.S. soldiers to spread their message that the soldiers’ deaths represented God’s punishment for the nation’s tolerance of homosexuality, the protests sparked bipartisan condemnation from political figures nationwide. But when a Maryland trial jury issued a $10.9 million tort judgment against Phelps and his church for intentional infliction of emotional distress, the protesters’ First Amendment objections received bipartisan support on the Court, with Roberts writing for eight of the nine justices in vacating the jury’s judgment. In response to this holding, the Republican House of Representatives and the Democratic Senate enacted the Honoring America’s Veterans and Caring for Camp Lejeune Families Act, which President Barack Obama signed into law in August 2012. Among other things, this statute provides that protests held within two hours of a military funeral must be located at least 300 feet from the funeral’s site. If and when this law sparks additional First Amendment disputes, the fact that it was enacted unanimously in both houses will likely play little role in the justices’ deliberations on the constitutional free speech issues at stake. This sort of institutional divide is not uncommon in free speech cases. It characterized the Rehnquist Court’s response to state and federal efforts to ban flag burning in Texas v. Johnson (1989) and United States v. Eichman (1990), and it has characterized the Roberts Court’s response to a number of First Amendment disputes as well. In United States v. Stevens (2010), an eight-justice majority (consisting of five Republican appointees and three Democrats) invalidated a federal ban on video depictions of animal cruelty that had been enacted by large bipartisan majorities in 1999. And in Brown v. Entertainment Merchants Association (2011), a seven-justice majority (four Republicans and three Democrats) invalWinter 2013
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When Does Chief Justice Roberts Cross Over? In 21 of these 37 cases, the justices were unanimous, indicating that the legal support for the liberal result was
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idated a California statute that restricted the sale or rental of violent video games to minors. These First Amendment holdings are the result of institutional commitments on the part of most judges to a well-established rights claim that most legislators are willing to sacrifice for reasons of political expediency. (That legislative sacrifice, of course, is made easier by the secure knowledge that the judges will step in and fix things if the legislators go too far.) But these holdings may be outliers. Indeed, most of the Court’s exercises of constitutional authority can be categorized in partisan or ideological terms without much difficulty. And in those cases, Chief Justice Roberts supports liberal results only rarely. By my count, prior to June 25, 2012 – i.e., up until the final week of its 2011-12 Term – the Court had issued 237 holdings in cases with constitutional dimensions during Roberts’s seven-year tenure as chief justice.3 This count includes the Court’s relatively infrequent exercises of judicial review – i.e., its holdings that a democratically enacted federal, state, or local statute is unconstitutional – but it also includes decisions in which the Court declined to strike down such a statute, as well as decisions involving constitutional claims against other governmental acts, including administrative regulations at the federal, state, or local level, and civil and criminal judgments issued by state or federal courts.4 Of these 237 holdings, I can give a clear ideological coding to the constitutional claim in 225 of them, and Roberts voted against type in just 37 of those 225.5 On 13 occasions, he voted to reject what I would characterize as a conservative constitutional claim; and on 24 occasions, he voted to accept a liberal one. Individually, each of these 37 decisions makes clear that Roberts is capable of setting aside his own ideological preferences in pursuit of neutral judging. But collectively, they do not amount to particularly robust evidence of judicial statesmanship.
Chief Justice Roberts promised a less polarized Court.
likely pretty clear. Four others were joined by all justices except Clarence Thomas, who was alone in insisting that the pre-clearance provisions of the federal Voting Rights Act exceeded the scope of congressional authority; that a Washington statute requiring public disclosure of the names of all signatories to initiative and referenda petitions violated the First Amendment; that when a criminal sentence has been set aside on appeal, the trial judge may not consider evidence of the defendant’s postsentencing rehabilitation in imposing a reduced sentence; and that a strip search of a thirteen-year-old public school student—by school officials, without notifying the student’s parents, and based on an uncorroborated report from a fellow student that she was in possession of over-the-counter ibuprofen tablets—did not violate the Fourth Amendment.6 In the twelve remaining cases, in which at least one justice besides Thomas favored a conservative result, Chief Justice Roberts favored a liberal result. The list will be familiar only to devoted Court-watchers: Jones v. Flowers (2006),
Watters v. Wachovia (2007), United Haulers Association v. Oneida-Herkimer (2007), Cunningham v. California (2007), Snyder v. Louisiana (2008), Giles v. California (2008), Yeager v. United States (2009), Oregon v. Ice (2009), Presley v. Georgia (2010), Skinner v. Switzer (2011), Maples v. Thomas (2012), and Martinez v. Ryan (2012). Jones v. Flowers was the only case (again, prior to June 25, 2012) in which Roberts joined the Court’s four liberals to make a five-justice majority – in other words, the single instance in which Roberts was the only conservative justice to cross over. Here, he joined his liberal colleagues to hold that a local government’s taking and sale of a privately owned home on which the owner was delinquent on his property taxes, without first providing adequate notice of that delinquency to the owner, violated the Fourteenth Amendment due process clause. In light of the property rights angle, this holding could well be characterized as support for a conservative rights claim, but it is conventionally considered a liberal due process hold-
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ing, and I have coded was 5-4, with the Court’s it as such. The other four Democratic appoincases on this list involved tees in dissent. either deprivations of Miller v. Alabama (2012) f our baseline is the widespread public conventionally liberal was also 5-4, but with constitutional rights that Kennedy joining the liberimage of polarized courts, it seems notewere clear enough to lead als, it was now the Court’s worthy that Roberts has regularly been Roberts and at least one four most conservative jusother conservative to join tices who were in dissent. willing to support liberal results. Not a their liberal colleagues Here, Roberts and his felor constitutional claims low dissenters insisted that majority of the time, and not usually in on which the justices mandatory sentences of high profile cases, but it has been a regular have repeatedly fraclife imprisonment without tured on non-ideological the possibility of parole occurrence. lines. Nine of the twelve could constitutionally be involved relatively arcane applied to juvenile offendmatters of criminal proceers, but Kennedy and the tive constitutional claims than to liberal dure. None of the twelve four Democratic appoinones. Still, they also indicate that the were front page news.7 tees disagreed. conservative Court has at times rejected Depending on one’s vantage point, The Court endorsed another liberal conservative constitutional claims and this record might be considered a glass constitutional claim in Arizona v. United has even more often (in terms of sheer that is half empty or half full. On the States (2012), holding that several key frequencies) accepted liberal constituone hand, Roberts crosses over in only provisions of a controversial Arizona tional claims. So it is clear that the 16.4 percent of the Court’s constitutional immigration statute (S.B. 1070) were justices are not voting in lockstep partiholdings, which means roughly five times preempted by federal immigration law. san alignments, but rather are pursuing per year. If our baseline is drawn from In dissent, Justices Scalia and Thomas a variety of goals that pull in different the image of judges as neutral umpires, argued that the state was fully within its directions in different cases. that does not seem particularly frequent. rights in enacting the notorious law, and On the other hand, 16.4 percent of the Justice Alito agreed with respect to most The June 2012 Holdings time is significantly different from never. of the law’s controversial provisions. But In this context, consider the mix of If our baseline is the widespread public Roberts and Kennedy joined with the constitutional holdings that were issued image of polarized courts, it seems noteCourt’s three participating Democratic during the final week of the 2011-12 worthy that Roberts has regularly been appointees – Justice Elena Kagan was Term. The Court issued five holdings willing to support liberal results. Not a recused from the case – to strike down that week. All of them represented majority of the time, and not usually in three key provisions and to indicate that active assertions of judicial authority, but high profile cases, but it has been a regua fourth key provision remained vulnerthe justices’ partisan, ideological, and lar occurrence. able to further constitutional challenge. institutional motivations varied signifiOf course, what is ultimately imporIn these four cases, in short, the cantly across the five cases. tant is not Roberts’s own vote, but the Roberts Court endorsed a non-partisan In United States v. Alvarez (2012), Robdecisions issued by the Court’s majorconstitutional claim, a conservative conerts and Kennedy joined the Court’s four ity. As the Court’s well-known swing stitutional claim, and two liberal constiDemocratic appointees to strike down justice, Anthony Kennedy votes against tutional claims, all in the space of a few the Stolen Valor Act, which had been type more often than Roberts, but yet days. The legal conflict over the Affordenacted unanimously in both houses of and still, the Court’s overall conservative able Care Act (ACA) put these competCongress and signed by President Bush leaning is clear. Of the Roberts Court’s ing priorities to the test, and for only the in 2006. Following the same free speech 237 constitutional holdings prior to June second time in his tenure, Roberts alone tradition as Snyder v. Phelps, a biparti25, 2012, 22.8 percent involved consticrossed over, joining the Court’s libersan group of justices held that the Act’s tutional claims from the right, and the als to make a five-justice majority that criminal ban on falsely claiming to have Court endorsed or enabled those claims upheld most major provisions of the Act. received a military decoration infringed in 59.3 percent of these cases. By conThe dilemma that Roberts faced in upon the First Amendment. trast, 72.2 percent involved constitutionNational Federation of Independent BusiIn American Tradition Partnership al claims from the left, and the Court nesses v. Sebelius (2012) was clear. His v. Bullock (2012), the Court followed endorsed or enabled only 32.2 percent of judicial tenure to date had not revealed the alternative free speech tradition of these liberal claims. any clear evidence of support for the Citizens United, invalidating a Montana As with Roberts’s own votes, these longstanding effort of judicial conservastatute banning corporations from makdata on the Court’s decisions indicate tives to rein in the regulatory powers ing campaign expenditures. The holding that the conservative majority generally of the federal government, but he was responds more favorably to conservawidely assumed to be in sympathy with
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this effort, particularly after his skeptiand Laurence Silberman made clear 1990s, and none of them suggested any cal questioning of Solicitor General that the courts were capable of addressconstitutional concerns until the policy Donald Verrilli over several days of oral ing the constitutionality of the ACA was endorsed by President Obama.11 Not argument in March 2012. But if he had in ways that did not mimic the partisan only that, but these four justices declared joined his four Republican colleagues to treatment of the policy in Congress. But the individual mandate’s unconstitutioninvalidate the signature domestic policy if the Supreme Court had reverted to ality in an opinion that borrowed much achievement of the Obama adminispartisan form—invalidating the law by from the rhetorical denigration that the tration, over a sharp dissent from the virtue of five Republican votes, with the ACA had suffered for two years at the Court’s four Democratic appointees, he Court’s four Democratic appointees in hands of Tea Party Republicans.12 And would have instantly vindicated the dissent—the justices would have cementjust three days earlier, one of them had widespread recent complaints about ed the public impression created by Bush launched an unorthodox fusillade against the Court’s partisan behavior. In doing v. Gore (2000) and Citizens United v. President Obama’s immigration policies so, moreover, he would have thrust the Federal Election Commission (2010) that from the bench.13 Court into the 2012 election as a central the twenty-first century Court was a parAnd even while upholding most of issue. tisan Court. the health care law, Roberts endorsed a After all, the case had drawn outsized fair measure of the conservative constiattention since it was filed. Indeed, on The Courts on the Brink tutional criticism to which it had been the day the decision came down, there By crossing over to join his Demosubjected. Like his conservative colwere likely more eyes on the Court than cratic colleagues, Chief Justice Roberts leagues, he held that the federal mandate ever before in its history. The fate of prevented this impression from taking to purchase health insurance (like a the ACA would have enormous policy root – at least for now. Only time will hypothetical mandate to purchase brocconsequences – for an industry representtell whether the story of National Federacoli) extended beyond the reach of coning 18 percent of GDP, for the federal tion of Independent Business v. Sebelius gressional authority under the interstate budget, and for the health of millions was that Roberts saved the Court from commerce clause. He nonetheless upheld of Americans. The political and legal self-immolation or that the federal courts the law’s individual mandate provision as conflicts over the law had been almost revealed themselves to be on the brink of a valid exercise of congressional taxing fully polarized from the start, beginning partisan capture. powers, and in doing so, used the opporwith the statute’s March 2010 enactment After all, four of the Court’s nine justunity to tar President Obama’s signaby a Democratic House and Senate, with tices voted to invalidate the entire 900ture domestic policy achievement as an no Republican votes. It was then chalpage statute, on the grounds that a single unpopular tax. And in the section of his lenged in court by Repubopinion regarding the lican officials from 14 ACA’s dramatic expanstates, a list that eventusion of Medicaid eligially grew to 26.8 A variety bility, he invalidated a of conservative individuals conditional spending and organizations filed grant for the first time parallel suits, and as these in the Court’s history, nly time will tell whether the story suits proceeded, federal thereby breathing life of NFIB v. Sebelius was that Roberts saved the judges seemed at first to into yet another longbe falling in partisan standing doctrinal goal Court from self-immolation or that the federal line. In February 2011, of legal conservatives. for example, it was widely All of which is to courts revealed themselves to be on the brink reported that of the five suggest that the risk of partisan capture. Federal District Judges to remains that our courts rule on the ACA’s conwill sometimes succumb stitutionality to date, the to the extraordinary three Democratic appoinpressures of partisan tees had upheld the law, polarization that have while the two Republicans had struck it provision violated a heretofore unheard afflicted the rest of our political system. down.9 of limitation on congressional power In the years to come, if Roberts continThankfully (for the reputation of that had been transparently crafted by ues along the lines suggested by his decithe federal courts), this partisan sortthe law’s political opponents. The consion to uphold most of the ACA despite ing broke down to some extent when troversial provision, which required all heavy conservative pressure to invalidate the cases reached the federal appellate Americans to maintain health insurance it, he will be remembered as a great chief courts, with two widely noted decisions or to pay a modest annual tax penalty, justice. If his Democratic colleagues upholding the law that were supported by had been endorsed by a wide variety sometimes do the same in reverse, the prominent conservative Republican judgof conservative policy advocates and Court will have successfully removed es.10 These opinions from Jeffrey Sutton Republican congressional leaders in the
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itself from our nation’s poisonous well of polarized politics. In the alternative, if Roberts spends his newfound institutional capital to pursue, once again, conservative ideological ends, his ACA holding will go down in history as a strategic effort by the Chief Justice to position the Court to succeed in its pursuit of partisan justice. With the constitutionality of race-conscious university admissions decisions, state and federal bans on same-sex marriage, and the federal Voting Rights Act on the docket for the 2012 Term, the answer may come soon. Notes 1. The quoted description of the material support statute is from Justice Breyer’s dissenting opinion in Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2731 (2010). The “Bong Hits for Jesus” holding came in Morse v. Frederick (2007). 2. Thomas M. Keck, “Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?” American Political Science Review 101:2 (May 2007): 321-338. 3. I consider five cases decided during the Court’s final week of the term below. 4. I have included habeas cases challenging criminal convictions and/or sentences, which often turn on statutory rules of criminal procedure but typically include an underlying constitutional claim as well. I have also included cases involving Sec. 1983 claims seeking to vindicate a constitutional right, which likewise tend to turn on a complex mix of statutory rules and constitutional principles. Finally, I have included preemption cases, in which state or local statutes, regulations, or judicial holdings are challenged as inconsistent with federal law. These latter cases typically emphasize the conflict between the state action and federal statutory law, but they also rest at least implicitly on the federal Constitution’s supremacy clause. I excluded all other cases that involved assertions of statutory rather than constitutional claims. 5. As a first cut, I relied on the ideological direction of the decision as recorded in the widely used Supreme Court Database, available on the Inter-
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net at http://scdb.wustl.edu/index.php. But where the database’s codes struck me as questionable, I recoded the relevant decisions accordingly. In some cases, this task involves difficult judgment calls. In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), for example, Roberts wrote for a five-justice majority in accepting a separation-of-powers challenge to the appointment and removal provisions of the Sarbanes-Oxley Act, but he held that the unconstitutional provisions were severable from the rest of the statute. I have coded this decision as a conservative victory, because it invalidated a key provision of a major federal regulatory statute; but from another angle, it could be seen as a conservative defeat, because it rejected the plaintiffs’ call to dispose of that statute altogether. 6. These dissenting opinions from Justice Thomas came in Northwest Austin Municipal Utility District No. 1 v. Holder (2009), Doe v. Reed (2010), Pepper v. United States (2011), and Safford Unified School District No. 1 v. Redding (2009), respectively. 7. At least not in the New York Times. Two of the twelve holdings received no coverage in the Times at all; eight were covered in the middle of the front section; one was covered in the business section on p. C2; and one (Giles v. California) was briefly mentioned toward the end of a front-page article focused on another decision issued the same day. See Linda Greenhouse, “Justices Bar Death Penalty for the Rape of a Child,” New York Times (June 26), A1. 8. The case that eventually made it to the Court, National Federation of Independent Business v. Sebelius, was initially filed by 13 state attorneys general, all of them Republican. The Republican attorney general of Virginia filed a separate constitutional challenge of his own. By the time the NFIB case reached the high Court, 25 states had signed on, with 22 of them represented by Republican attorneys general and 3 others by Republican governors. Virginia continued to maintain its own separate constitutional challenge. 9. See, for example, Kevin Sack, “A Third Judge Validates Health Care Overhaul Law,” New York Times (February 23, 2011), A14; Editors, “3 to 2 for Health
Care Reform,” New York Times (February 26, 2011), A18. 10. Thomas More Law Center v. Obama, 651 F.3d 529 (6th Cir. 2011); Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011). 11. Ezra Klein, “Unpopular Mandate: Why do Politicians Reverse their Positions?” New Yorker (June 25, 2012). 12. Most famously, Justices Scalia, Thomas, Alito, and Kennedy argued that if Congress were constitutionally entitled to mandate the purchase of health insurance, it could also mandate the purchase of broccoli. National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 2650 (2012). 13. Namely Justice Scalia, whose dissenting opinion in Arizona v. United States (2012), which he read from the bench on June 25, 2012, included a scathing attack on a recent executive order issued by President Obama that had nothing to do with the legal issues in the case and indeed had been issued just ten days before the Court’s decision was announced, which was long after all briefs and arguments in the case had been submitted.
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Judicial Independence and the Roberts Court Justin Wert University of Oklahoma
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ny analysis of the Roberts Court – or any Supreme Court – only seven years in should, of course, be preliminary. This is not only a practical concern for the reputation of the prognosticator. It is also a temporal one, for we need to take seriously the developing nature of the Court (here, a Roberts Court) over time as a unique institution in American politics. This does not mean, however, that temporality is the only significant variable driving the Roberts Court’s outcomes. At work also are other, more traditional, variables, such as the justice’s own policy preferences. But in my analysis, we would do well to consider the changes in these variables in light of the Court’s – and especially Chief Justice Roberts’s – place in time. In doing so, we might be able to understand better the conditions under which these variables have more or less explanatory significance. What we also might find, though, is that seven years in, the Roberts Court has become just that: the Roberts Court. Although one case is just that – one case – the Court’s decision in National Federation of Independent Business v. Sebelius has, so far, been the most salient.1 Its salience, though, goes beyond media coverage. The case also comes at a certain point in political time, and is informed by previous political and judicial developments that can help us understand not only the Roberts Court’s past, but the Roberts Court’s future as well. And up to now, the case serves as a useful lens through which to make sense of the past and future of the Court.
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Justin Wert is Associate Professor of Political Science at the University of Oklahoma. He is the author of Habeas Corpus in America: The Politics of Individual Rights (University Press of Kansas, 2011); “Seats, Votes, Citizens, and History in the One-Person, One-Vote Problem” (with Ronald Keith Gaddie and Charles S. Bullock, Stanford Law & Policy Review, Spring 2012); “Benedick v. Beatrice: Citizens United and the Reign of the Laggard Court” (with Charles S. Bullock and Ronald Keith Gaddie, Cornell Journal of Law and Public Policy, Vol. 20, 2011); and “The Electoral College and Voting Rights” (with Charles S. Bullock and Ronald Keith Gaddie, Faulkner University Law Review, 2009). He is currently working on a book that examines the pre-war determinants of the loss of Constitutional rights during war. Professor Wert’s email address is jwert@ou.edu.
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Scholars and pundits were not sur• The twelve state attorneys vidual mandate, while probably prised at the outcome generally: most general who challenged the not good policy, was neverthebelieved that the Patient Protection and constitutionality of the bill were less constitutional.5 Affordable Care Act (PPACA) would be Republicans; and most attorneys The political aspects of the debate upheld, even if by a 5-4 majority. What general who filed briefs in supare instructive because they can help us did surprise them, though, were three port of the constitutionality of understand how constitutional politics things. The first – and most surprising the bill were Democrats; actually work in practice. One thing –was that the decisive fifth vote came • When we look at the federal political science research can teach us not from Justice Anthony Kennedy, but judges on the district and circuit (there are a few other things, too) is that from Chief Justice Roberts. The second court levels that heard challengfor myriad reasons political parties often was that the Act was upheld not under es to the bill, we see that almost use the courts to get their work done.6 the commerce clause, but under the taxall of the judges who have ruled The most obvious way is when a party ing clause. And finally, and related to that the bill’s most important – like the Republicans in early 2008 – is the to the first, it seems as if the Chief provision – the individual manon the losing end they can attempt to Justice might have switched his vote, date – was unconstitutional overcome this institutional reality by which would explain why the majority were appointed by Republican appealing to a seemingly sympathetic opinion (authored by Roberts) went to presidents; and almost every court. great lengths to make the case that the judge that voted to uphold the Despite legal speculation that the Act’s linchpin – the individual mandate constitutionality of the bill Act would be upheld based upon the – exceeded the power of Congress to and the individual mandate Supreme Court’s post-1937 deference regulate interstate commerce.2 was appointed by a Democratic to a broad conception of Congress’s So why were any of these developpresident;4 commerce clause powers, though, the ments surprising, reality is that this and how do they has been a reliably illuminate our conservative court, understanding of made up of a majorthe Roberts Court? ity of justices who ith few exceptions, then, opponents of the Act To understand the were appointed by answers, we might Republican presihad good reason to believe that the Roberts Court consider first the dents. With few fact that this case exceptions, then, would sustain their objections, if only because this was easily the most opponents of the court – and the R ehnquist Court before it – has been salient one the Act had good reaCourt has heard son to believe that unabashed in its willingness to advance a conservative in over a decade. the Roberts Court Arguably we have would sustain their vision of constitutional governance. not seen such a objections, if only politically charged because this court – case since Bush v. and the Rehnquist Gore (2000).3 Court before it – To gain a sense of the political divi• Further sparking charges of has been unabashed in its willingness to siveness of the issue, consider the followsheer partisanship is the fact advance a conservative vision of constiing: that some Republican polititutional governance. • Not a single Republican voted cians and conservative think With respect to commerce clause for the bill in Congress; tanks have even switched their cases, both the Rehnquist and Roberts • The day after the bill was positions on the most controCourts (including Justice Kennedy) have passed, the Republican conversial part of the bill – the signaled a line in the post-1937s and in trolled House of Representatives individual mandate. The HeriUnited States v. Lopez ([1995] striking voted to repeal the bill; tage Foundation, for example, down the Gun-Free School Zones Act) • The Act’s repeal is a central supported the individual manand United States v. Morrison ([2000] platform of the Tea Party movedate in 1989 and, of course, striking down the Violence Against ment, and in no small way this presidential candidate Mitt Women Act).7 And even when Conmovement – and their characRomney supported and signed gress’s powers have been upheld, the terization of the healthcare bill into law a nearly identical bill substantive area in question has been – helped Republicans win back in Massachusetts. Moreover, criminal law, an area which is central the House of Representatives in Ronald Reagan’s former solicitor to the conservative agenda. Thus it was 2010; general, Charles Fried, testified not surprising that in Gonzales v. Raich before Congress that the indi(2005) the Court upheld Congress’s abil-
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ity to criminalize the production of marijuana in states that allowed such production and also upheld Congress’s power to require civil commitment for sex offenders in United States v. Comstock (2010).8 Similarly, in the equal protection arena, the Roberts Court struck down even minimal attempts by school districts to achieve racial integration, with the chief justice himself arguing that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”9 With respect to abortion, the Roberts Court upheld the Partial Birth Abortion Act in Gonzales v. Carhart (2007).10 And while Roberts wrote for a unanimous Court in allowing a political subdivision to “bail out” from the Voting Rights Act’s preclearance requirements, ground was also laid in that case for potentially overturning large portions of the VRA.11 Towing the party line even further, the Court not only (re)interpreted the Second Amendment as guaranteeing an individual right to own a firearm but incorporated this right against the states.12 But the biggest signal of the Roberts Court’s overlap with conservative visions of constitutional governance was, of course, Citizens United v. FEC (2010).13 Many saw this case as clear evidence that the Roberts Court – and the chief justice himself – was truly on board and unafraid. Even though in Gonzales v. Carhart the door was left open for future as-applied challenges, the Court (with Roberts) nevertheless declined to overrule Roe and Casey,14 and in NAMUDNO, Roberts, citing the doctrine of “Constitutional avoidance,” declined to strike down the VRA. Moreover, McDonald allowed the Court to get in on the process of selective incorporation of the Bill of Rights, which has largely been part of the liberal agenda. While certainly controversial, these moves could plausibly square with Roberts’s own asserted goal, as Tom Keck notes in the previous piece, to “maintain and renew the public’s faith in the Supreme Court as a venue of non-partisan legal decisionmaking.” Citizens United seemed to bring down this house of cards. The initial argument made by the non-profit Citizens United (represented by former President George W. Bush’s solicitor general, Ted Olson)
Are corporations people? was that it should simply be exempt from existing campaign finance regulations. During oral arguments, though, it quickly became clear that the conservative justices were, according to Jeffrey Toobin, “disappointed by the modesty of Olson’s claim.”15 This was confirmed when Deputy Solicitor General Malcolm Stewart addressed the Court. Alito, Scalia, and Chief Justice Roberts pushed the argument further, asking Stewart if he believed existing regulations would also require a ban on other forms of advocacy beyond commercial and broadcast media, including books. Seemingly flummoxed, Stewart responded: “Well, if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provision.”16 The initial conference vote was unsurprising, with a 5-4 conservative majority. The initial draft opinions, though, began to change when circulated among the justices. Roberts’s opinion was limited to the narrow question of exemption, but Kennedy’s went further, arguing that McCain-Feingold was unconstitutional. Soon Scalia, Alito, and Thomas indicated their support for Kennedy’s opinion. Chief Justice Roberts then assigned the majority opinion to Kennedy. Angered, Justice Souter (who had just announced his impending retirement) in his dissent provided not
only a critique of the legal issues, but also a broadside against what he perceived as a disingenuous attempt by the conservatives to achieve a result in the case that even the petitioners had not advanced. Maybe recognizing the potential damage to the Court’s legitimacy and reputation that Souter’s opinion could produce, Roberts jettisoned the majority opinion and ordered another round of arguments to consider whether to overrule Austin v. Michigan Chamber of Commerce (1990) and/or McConnell v. FEC (2003).17 As we know, the final decision – which, with a 5-4 vote, did indeed overturn both cases and also characterized corporations as citizens – was highly controversial. For our purposes, though, the fact that the chief justice was moved to issue a concurring opinion addressing “the important principles of judicial restraint and stare decisis implicated in this case,” is most significant.18 Unmoved by the chief justice’s attempt to defend the decision, though, Justice John Paul Stevens railed against the majority: “The Court’s ruling threatens to undermine the integrity of elected institutions across the country. The path it has taken to reach this outcome will, I fear, do damage to this institution” (emphasis mine).19 And, of course, six days later President Obama criticized the Court in his State of the Union Address, during which Justice Alito angrily mouthed
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“not true!” in response. It did indeed policy preferences, but they also believe Institutions, as Rogers M. Smith argues, seem that even if “damage” had not been that justices also want to win. A simple can “influence the self-conception of done to the institution as a result of the roll-call of attitudes can always lose, so those who occupy roles defined by them decision, it was, at the very least, in the justices often modify their ideal preferin ways that can give those persons discrosshairs. ences to achieve a minimal winning tinctively ‘institutional’ perspectives.”23 So, considering the aftermath of coalition. The attitudinal and strategic Among the various approaches, then, Citizens United and the Court’s previous models are powerful and persuasive this explanation might have the most decisions discussed so far, how can we models, but we are asking about the explanatory power, though, as I will make sense of the surprising results of conditions under which these variables argue, it might be incomplete unless the health care decision in terms of the are more or less helpful. Even if reports qualified in important ways. Roberts Court’s seemingly precarious of Roberts switching his vote are wrong, We have to remember that, in the – and conspicuous – position? Let’s conthe strategic model does not explain words of Alexander Hamilton, the sider some alternative explanations. Sebelius either, because the conservatives judiciary was supposed to be the “least One explanation could simply be that would not need to adjust their preferencdangerous branch,” largely because it had Roberts followed the law. According es at all to achieve their desired result. neither the “power of the purse or of the to the “legal model” of judicial behavAnother explanation could be sword” to enforce its opinions.24 It only ior, judges are guided by legal norms, “Regimes Theory,” which might arguably has judgment, and that judgment cannot precedent, rules, and constitutional and have been the perspective from which have any meaningful effect if the institustatutory text tion’s indepento resolve cases. dence is threatSebelius does, ened, especially and does not, if it is threatened conform to this because other model. From one institutions ne explanation could simply be that Roberts perspective, Robdoubt its legitifollowed the law. erts’s rationale macy. As Robert for upholding the McCloskey has Act – Congress’s argued, “The taxing power – judges have usucould be seen as a ally known what mechanical application of the law in that opponents of the Act hoped would prestudents have sometimes not known it could be construed, as he suggested, as dict their preferred outcome.22 Without – that their tribunal must be a court, “construing a statute to save it.”20 But on rejecting attitudinal and strategic explaas well as seem one, if it is to retain its the commerce clause question, which the nations outright, Regime Theory seeks power.”25 Roberts Court rejected, he went to great to explain long-term judicial outcomes Here, then, we can start to see how lengths to hew his opinion to the Court’s as part of the larger political process, some judges – and, I believe, in the case post-1995 arguments. More than likely, particularly critical election theory. Jusof the health care decision Chief Justice then, something other than the legal tices are appointed by presidents and Roberts is one of them – might vote in model was at work. confirmed by the senates, so over time ways that are different than, and even From the perspective of the “attituwe get judicial outcomes from courts that diametrically opposed to, their own prefdinal” model, the assumption would be largely uphold the core political commiterences, or the preferences of the regime that, like every other politician, Roberts ments and values of the regimes which from which they were appointed. This is would simply vote his policy preferences appointed them. Again, Roberts’s vote because the judges want to maintain the unencumbered by legal rules and precin this case is not explained by Regime legitimacy of their institution. edent. In other words, Justice Roberts Theory. Many have settled on the explanation would vote like a Republican and Justice A more “historical-institutional” that Roberts voted this way to uphold Ginsburg, for example, would vote like approach, on the other hand, might give institutional legitimacy and indepena Democrat. Particularly in civil liberus something close to a valid explanadence, and I think they are largely ties cases (Fourth Amendment), there is tion. While this perspective certainly correct. But there is also the possibilevidence that this model is persuasive. admits that judges are often solicitous of ity that he did so both to protect the But this cannot be the whole story in their policy preferences, and concedes integrity of the Court AND to control this case because every justice BUT Robthat at times they might act strategically the timing and manner of advancing erts voted the way the attitudinal model to achieve those preferences, it also sees conservative regime preferences in the would have predicted. justices as solicitous of their own peculiar future. Thus, while giving the president Related to the attitudinal model is, institutional roles as well. This means his signature piece of legislation prediof course, the strategic model.21 This that the institution itself might produce cated on the least attractive argument approach largely agrees with their attiincentives or preferences (concern for its might have bucked Roberts’s own prefertudinal brethren that justices vote their independence or legitimacy, for example). ences, augured short-term ill-will among
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his conservative judicial brethren on the Court, and disappointed the regime which appointed him, it might also have given Roberts the independence and legitimacy to allow himself the ability to craft his own, slightly modified version of conservative constitutional governance.26 In this sense, the chief justice might now believe that he has to lead. Time will tell, and that time might come sooner than later, especially as the Court this term takes up serious challenges to affirmative action, gay marriage, and voting rights. Higher salience cases might be more minimalist or even deferential with respect to the maintenance of judicial independence and legitimacy, but less salient ones might not. But if the lessons of Citizens United and Sebelius are any indication, this transformation will now have to go through Justice Roberts himself. Notes 1. National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012). On issue and case salience, see Lee Epstein and Jeffrey A. Segal, “Measuring Issue Salience,” American Journal of Political Science 44 (January 2000): 66-83. 2. Jan Crawford, “Roberts Switched Views to Uphold Healthcare Law,” CBS News, http://www.cbsnews.com/83013460_162-57464549/roberts-switchedviews-to-uphold-health-care-law/. 3. Bush v. Gore, 531 U.S. 98 (2000). 4. A notable exception was Thomas More Law Center v. Obama, 651 F.3d 529 (2011), in which Judge Jeffrey Sutton, a George W. Bush appointee and former law clerk to Justice Antonin Scalia, voted to uphold the Act.
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5. Testimony of Charles Fried, Senate Committee on the Judiciary, February 2, 2011. 6. See, for example, Keith E. Whittington, “‘Interpose Your Friendly Hand’: Political Supports for the Exercise of Judicial Review by the United States Supreme Court,” American Political Science Review 99:4 (2005), 583-596; Mark A. Graber, “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 (Spring 1993), 35-73. 7. United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000) 8. United States v. Comstock , 545 U.S. 1 (2005); 130 S. Ct. 1949 (2010). 9. Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). 10. Gonzales v. Carhart, 550 U.S. 124 (2007). 11. Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009). 12. District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 3025 (2010). 13. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). 14. Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). 15. Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court (New York: Doubleday, 2012), 165. 16. Transcripts of oral arguments, Citizens United v. Federal Election Commission¸ No. 08-205, p. 29, March 24, 2009. 17. This effectively meant that the Court was considering a facial challenge to the Bipartisan Campaign Reform Act.
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18. Citizens United, 65. 19. Ibid., 91. 20. Sebelius, 44. 21. See, for example, Lee Epstein and Jack Knight, The Choices Justices Make (Washington, D.C.: CQ Press, 1998) and Forrest Maltzman, James F. Spriggs, and Paul J. Wahlbeck, Crafting Law on the Supreme Court: The Collegial Game (Cambridge: Cambridge University Press, 2000). 22. For a review of this literature, see Thomas M. Keck, “Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes,” American Political Science Review 101:2 (2007). 23. Rogers M. Smith, “Political Jurisprudence, The ‘New Institutionalism,’ and the Future of Public Law,” American Political Science Review 82:1 (1988), 95. 24. Federalist #78. 25. Robert McCloskey, The American Supreme Court (Chicago: University of Chicago Press, 2010), 13. 26. Jan Crawford reports that the other conservative justices told Roberts: “You’re on your own.” See “Roberts Switched Views to Uphold Healthcare Law,” CBS News, http://www.cbsnews. com/8301-3460_162-57464549/robertsswitched-views-to-uphold-health-carelaw/.
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Toward A New “Careful Scrutiny” of Congressional Power: The Dissent in the Health Care Case Harry F. Tepker University of Oklahoma
Even a decision settling an ordinary quarrel between litigants is a push, though unavowed, in the direction of one generalization rather than another. Moreover, though it is the fashion to insist that law is what the courts do and not what they say, what they say has a considerable influence on what they do next. This is profoundly true of Constitutional law.1
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rofessor Felix Frankfurter offered this analysis of commerce clause cases in the twentieth century, shortly before Franklin D. Roosevelt nominated the Harvard law professor for the U.S. Supreme Court, where Justice Frankfurter influenced the push toward FDR’s visions of constitutional nationalism. Of course, National Federation of Independent Business v. 2 Sebelius was no ordinary quarrel. It was the most anticipated case of the 2011-12 term. At risk was the Patient Protection and Affordable Care Act (“ACA”), the signature achievement of President Barack Obama’s first term. The justices’ decision seems destined to be remembered as a landmark in which Chief Justice John Roberts offered an opinion of the Court containing many mixed messages, but ultimately upholding the ACA as a constitutional exercise of Congress’s power to tax and spend.3
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Harry F. Tepker is Professor of Law and Calvert Chair of Law and Liberty at the University of Oklahoma where he teaches courses in the areas of constitutional law, employment law, and equal employment opportunity. He has earned numerous university teaching awards and is author of many law review articles. He served as Professor-inResidence and Attorney, U.S. Equal Employment Opportunity Commission, Office of General Counsel, 1988-89. Professor Tepker is the first member of the OU law faculty to appear, argue, and win a case before the United States Supreme Court. That case – Thompson v. Oklahoma, 487 U.S. 815 (1988) – was the first in which an American court overturned a death sentence on constitutional grounds because the condemned was too young at the time of the crime. Prior to joining the OU faculty, Tepker practiced law for five years, specializing in labor and employment issues, as an associate with the Los Angeles firm of Gibson, Dunn & Crutcher. Professor Tepker’s email address is rtepker@ou.edu.
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Dissenting opinions often do not get immediate or extended Government cannot do everything is a fundaattention from media, press, practicing lawyers, and law stumental precept. dents. They usually focus on what the Court has done and The specific doctrinal thesis of the dissenting quartet is but what the law “is.” But analysis of dissents often points the an inference from the idea “there must be limits.” The dissentway toward what the law may become. Justices Antonin Scaers claim this inference is a “clear principle” that ought to have lia, Anthony Kennedy, Clarence Thomas, and Samuel Alito resolved the case. announced a joint dissenting opinion4 that may be a good docWhat is absolutely clear, affirmed by the trinal indicator of issues, both old and new, to be litigated in text of the 1789 Constitution, by the Tenth cases of the near future. It is unusual for justices to announce Amendment ratified in 1791, and by innumera joint dissenting opinion. Normally, one writes; others join in able cases of ours in the 220 years since, is that support of the principal author’s work. One message of the joint there are structural limits upon federal power dissenting opinion in NFIB was solidarity, determination, and – upon what it can prescribe with respect to passion: private conduct, and upon what it can impose Structural protections – notably, the upon the sovereign States. Whatever may be restraints imposed by federalism and separathe conceptual limits upon the Commerce tion of powers – are less romantic and have Clause and upon the power to tax and spend, less obvious a connection to personal freedom they cannot be such as will enable the Federal than the provisions of the Bill of Rights or the Government to regulate all private conduct Civil War Amendments. Hence they tend to and to compel the States to function as adminbe undervalued istrators of federal or even forgotten programs.6 by our citizens. Others may It should be the have different responsibility of notions of what he dissent ’s passion for structure the Court to teach amounts to “clear” otherwise, to principles. Still, yielded an overriding theme, often repeated: remind our people there are more there must be some limits. A nd no one could that the Framers specific elements considered strucin their argument. think of limits of the kind the dissenters tural protections When no one of freedom the else can think of thought necessary for preservation of proper most important limits, it is the constitutional balance. ones, for which judicial duty of reason they alone the justices to were embodied do so. Because in the original there must be Constitution and not left to later amendment. some limit, somewhere, somehow, it is the judicial duty The fragmentation of power produced by the of the Court, the dissenting quartet claims, to strike structure of our Government is central to libdown the law in the name of federalism and enumererty, and when we destroy it, we place liberty ated powers. The limits must be conceptual, doctrinal at peril. Today’s decision should have vindiand enforceable. As applied to the ACA, the insurcated, should have taught, this truth; instead, ance mandate was unconstitutional regulation of comour judgment today has disregarded it.5 mercial inactivity, not commerce: The dissent’s passion for structure yielded an overriding We do not doubt that the buying and selltheme, often repeated: there must be some limits. And no one ing of health insurance contracts is commerce could think of limits of the kind the dissenters thought necesgenerally subject to federal regulation. But sary for preservation of proper constitutional balance: when Congress provides that (nearly) all citiThe Government was invited, at oral arguzens must buy an insurance contract, it goes ment, to suggest what federal controls over beyond “adjust[ing] by rule or method,” … or private conduct (other than those explicitly “direct[ing] according to rule,” …; it directs prohibited by the Bill of Rights or other the creation of commerce.7 constitutional controls) could not be justiThe distinction between problems local and national8 is no fied as necessary and proper for the carrying such limit, or at least not enough of one. The dissenting jusout of a general regulatory scheme. … It was tices seem to concede that the president and Congress wrought unable to name any. As we said at the outset, a national remedy for a national problem; there is little analysis whereas the precise scope of the Commerce to suggest the national government invaded distinctly local Clause and the Necessary and Proper Clause matters. is uncertain, the proposition that the Federal
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Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) go beyond those powers. We conclude that they do.9 So, the dissenters do not deny Congress has power to address health care for the indigent. They do not deny it is a problem authentically national in character. It does not matter. “[T]he complex structures and provisions of the Patient Protection and Affordable Care Act go beyond” the powers conferred by the Constitution on Congress. The ACA is too close to the idea that the national government can do anything. The doctrinal implications of the quartet’s passion depart from precedent and established standards. It is not enough that Congress be required to have a rational basis for concluding that regulated activity bear a “close and substantial relation”10 with interstate commerce. Specifically, the four seek to redefine the applicable “test” for national authority. At the outer edge of the commerce power, this Court has insisted on careful scrutiny of regulations that do not act directly on an interstate market or its participants…. [T]he Commerce Clause, even when supplemented by the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce. [Also] the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power.11 In oral argument, Justice Kennedy had said something similar, albeit in the form of a question. He claimed to “understand that we must presume laws are constitutional,” but he proceeded to suggest “when you are changing the relation of the individual to the government in this … unique way,” it is the government that bears “a heavy burden of justification to show authorization under the Constitution.”12 Justice Kennedy “had seventy-five years of constitutional law precisely backwards.”13 The oftenstated presumption of constitutionality14 was to be reversed, if the dissent’s analysis had prevailed. The dissent’s “careful scrutiny” would require justices to weigh and second-guess policy alternatives, overtly and assertively. For example, in oral argument, when the Solicitor General discussed the ACA’s basic objective to promote the nation’s commitment to offer health care to the indigent, Justice Scalia illustrated “careful scrutiny.” GENERAL VERRILLI: …. It’s because you’re going – in the health care market, you’re going into the market without the ability to pay for what you get[;] getting the health care service anyway as a result of the social
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“W
hen no one else can think of limits,
it is the judicial duty of the justices to do so.
Because
there must be some limit,
somewhere, somehow, it is the judicial duty of the
Court, the dissenting quartet
claims, to strike down the law in the name of federalism and enumerated powers.
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norms … to which we’ve obligated ourselves so that people get health care. JUSTICE SCALIA: Well, don’t obligate yourself to that…. GENERAL VERRILLI: Well, I can’t imagine that … the Commerce Clause would … forbid Congress from taking into account this deeply embedded social norm. JUSTICE SCALIA: You… could do it.15 In sum, the dissenting quartet approached the health care mandate issue very differently than the cases of a three-quarters of a century. In so doing, they betrayed no inclination to follow John Marshall’s reminder that there are limits in a republican form of government: The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this as in many other instances, … the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must rely solely in all representative governments.16 Only historical context explains the audacity of the dissent. NFIB was only the latest chapter in a long political, ideological and moral struggle over the oldest constitutional issue: the “necessary and proper” powers of a national government as opposed to the rightful autonomy of the states. The decision to uphold the ACA was an appropriate reminder and reaffirmation of the oldest and most basic lesson of the struggle to replace the Articles of Confederation with the Constitution. When Madison, Hamilton, Washington and allies framed the Constitution, they created a national government, a government worthy of “we, the People,” and a government capable of governing the nation. James Madison influenced the final version of the constitutional text as much as any one man. He saw the Constitution’s intended design as a “a happy combination.” Specifically, “the great and aggregate interests [are] referred to the national, the local and particular to the State legislatures.”17 In Gibbons v. Ogden,18 Chief Justice John Marshall made the same point:
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The genius and character of the whole government Where the law is not prohibited, and is seem to be, that its action is to be applied to all the really calculated to effect any of the objects external concerns of the nation, and to those internal entrusted to the government, to undertake here concerns which affect the States generally; but not to to inquire into the degree of its necessity those which are completely within a particular State, would be to pass the line which circumscribes which do not affect other States, and with which it is the judicial department and to tread on legisnot necessary to interfere, for the purpose of executing lative ground. This court disclaims all pretensome of the general powers of the government. The sions to such a power.22 completely internal commerce of a state... may be conJudicial review must be realistic, fully aware that our sidered as reserved for the state itself....19 constitution was “intended to endure for ages to come, The two statements, coming from friends and rivals, are a and consequently, to be adapted to the various crises of telling symptom of constitutional nationalism. Unfortunately, human affairs.”23 Constitutional endurance and policy basic principles were genadaptation requires eral and left many questions respecting the imporunanswered; the founding was tance of politics, the incomplete; many questions choices of the people’s were not foreseen; and the representatives and text’s ambiguities and silences the democratic tradihe dissent’s ‘careful scrutiny’ would were left for political struggle tions of our republic. and eventual judicial clarificaIn the past, Justice require justices to weigh and secondtion. Scalia understood guess policy alternatives, overtly and Responding to Justice and appreciated the Ginsburg’s opinion, the disconstitutional basis assertively. senting quartet argue that for a “broad” interprethe individual mandate tation: “threatens our constitutional Marshall was saying order… because it gives such that the Constitution an expansive meaning to the had to be interpreted Commerce Clause that all private conduct (including failure generously because the powers conferred upon to act) becomes subject to federal control, effectively destroyCongress under it had to be broad enough to ing the Constitution’s division of governmental powers.”20 The serve not only the needs of the federal governdissenters were not persuaded by a Justice Ginsburg’s history of ment originally discerned but also the needs “wide and wonderful results through the proper exercise of its that might arise in the future. If constitutional assigned powers in the past.” Her mistake? The opinion of interpretation could be adjusted as changing Justice Ginsburg “treats the Constitution as though it is an enucircumstances required, a broad initial intermeration of those problems that the Federal Government can pretation would have been unnecessary.24 address – among which, it finds, is ‘the Nation’s course in the Over time, the needs of the nation to deal with national economic and social welfare realm.’” problems have prevailed. Over one hundred and fifty years The Constitution is not that. It enumerates ago, the nation tore itself apart after some politicians, primarily not federally soluble problems, but federally in the South, showed an exasperating disregard of the plainavailable powers. The Federal Government est facts and pretended the Constitution barred Congress from can address whatever problems it wants but regulating slavery in the West. They persuaded the Supreme can bring to their solution only those powers Court to render a disgracefully reasoned opinion25 using conthat the Constitution confers, among which trived defenses of state supremacy over all aspects of the slavery is the power to regulate commerce. None of controversy. The end result was rebellion that nearly destroyed our cases say anything else. Article I contains the last, best hope of earth; a rebellion that had to be quelled no whatever-it-takes-to-solve-a-national-problem by a determined, nationalist president. power.21 Seventy-five years ago, preachers of an old-time constitutional There it is: The Constitution offers an enumeration of powmythology denied that Congress had capability to struggle with ers, not problems. But how are powers enumerated except as the Great Depression or any other national problems, though a listing of functions? Or a listing of legitimate objects? John doctrine eventually yielded to need and crisis – and leadership Marshall famously said, a constitution’s “nature. . . requires that from a determined nationalist president.26 Half a century ago, only its great outlines should be marked, its important objects the same constitutional myths stood in the way of determined, designated, and the minor ingredients which compose those nationalist presidents who knew it was past time to address civil objects be deduced from the nature of the objects themselves.” rights with federal remedies.27 Again, only the words of Marshall – a historic beginning point Again and again the Supreme Court confronted these aspects for judicial promises of self restraint – allow measurement of the of the nation’s oldest constitutional controversy, and again and dissent’s errors: again – with some exceptions – the Court said the issue was
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Associated Press
Does the Tea Party understand the Constitution? a relatively straightforward problem: Could Congress choose its own public policy to deal with national problems? The Court said yes; and in those exceptional cases when the Court said no, it overruled itself, sometimes slowly, sometimes quite quickly. The Court understood that to inquire into the wisdom of congressional legislation was to go beyond the judicial role and to tread on legislative ground. Just like John Marshall said in McCulloch.28 Using history and precedent, not revisionist academic theory,29 there are only three points needed to get to the heart of the matter. First, there is not a syllable in the Constitution suggesting that the individual citizen has a general right to be let alone when deciding to trust the generosity of neighbors or the federal government to cover the risk of sickness, disease or accident. Rising emergency health care costs are passed on to all of us, and particularly employers and businesses, by taxes or insurance premiums. It is a substantial, real problem of the national economy, and the national implications
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are precisely the kind of problems the American people have expected Congress to address. Second, Congress has been taxing, spending and regulating health care markets and health insurance markets for half a century. There is no basis for a state to pretend that health care has been exclusively or traditionally a local or state function. Finally, the debate over health care is at heart a question of public policy. It is a conflict over whether regulation of the health care industry is wise. Should public policy set itself against discrimination in the health care market, and in favor of covering all citizens rather than a class of the actuarially preferable clients? These are policy matters and the Court has said, over and over again, the wisdom and fairness of a law is not for judges, it is for the representatives of “we, the people.” John Roberts said the same thing in his opinion for the Court in NFIB.30 Americans have been debating about what to do about health care since the beginning of the twentieth century. In
2008, the nation elected a president who promised action, and kept his campaign promise. He persuaded Congress to take modest steps toward reforming the health insurance industry, rather than legislate a government “take-over” of health care. The selection of a more modest alternative was a political decision and a compromise. A deferential scrutiny allows Congress breathing room for compromise. The Court remembered this basic fact, and it kept its promise of self-restraint, respecting representative government. What does the dissenting opinion portend? One case on the docket may prove significant. Days after the reelection of President Obama, the Court granted a petition for a writ of certiorari in Shelby County, Alabama v. Holder.31 Review was limited to a single question, whether Congress’s decision in 2006 to reauthorize Justice Department preclearance authority under the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments.32 The county complains about the decision of the appellate court to apply “an overly deferential standard of review that infected every aspect of its analysis and thus effectively abandoning ‘vital principles necessary to maintain separation of powers and the federal balance.’”33 In response, the Justice Department pointed to “an extensive record demonstrating that, despite considerable progress . . . discrimination against minority voters continues to be a serious problem in covered jurisdictions.”34 Simply, if Congress studies the issues enough and if the government persuades the justices of the “degree of necessity”35 for preclearance authority, the government wins. If not, the government loses. If the dissenting quartet and the chief justice unite to require a careful scrutiny, the federal government may lose “a valuable tool in preventing, remedying, and deterring”36 voting rights violations. Notes 1. Felix Frankfurter, The Commerce Clause Under Marshall, Taney and Waite (Chapel Hill, N.C. : University of North Carolina Press, 1937), 25-26. 2. National Federation of Independent Business v. Sebelius, _U.S._, 132 S. Ct. 2566 (2012) (“NFIB”).
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3. U.S. Constitution, art. I, §8 (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States[.]”) 4. The voting pattern of the justices in NFIB is, to put it mildly, confusing. The dissenting opinion of the quartet refers to Justice Ginsburg’s opinion as a “dissent,” though she concurs in the analysis of the tax power issue that resolved the constitutionality of the mandate. For purposes of clarity, when this paper refers to a “dissent” or a “dissenting opinion,” it refers only to the joint opinion announced by Justices Scalia, Kennedy, Thomas, and Alito. The other basic problem caused by the justices’ confusing terminology is the status of congressional authority on the basis of the Commerce Clause, U.S. Const., art. I, §8 (“The Congress shall have Power … [t]o regulate Commerce … among the several States….”), and the Necessary and Proper Clause, U.S. Const., art. I, §8 (“The Congress shall have Power… [t]o make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers….”). The Chief’s discussion of the commerce power is, arguably, dicta. It is logically irrelevant to the holding that the mandate is a constitutional exercise of the power to tax. His opinion on the point was joined by no one. He does not join any portion of opinion of the dissenting quartet. There are similarities in the analysis that may advise and inform lawyers’ arguments in the future. 5. NFIB, 132 S. Ct. at 2676-77. Almost five months later, Justice Scalia explained his passion in an address to the Federalist Society: Cases involving the “rights,” even the Bill of Rights, “aren’t the ones ‘I live or die for.’” That distinction is reserved for cases that test the structure of the U.S. government, from separation of powers to federalism. Even dictatorships can have a bill of rights written down, he said, but the structure of government is what ensures that laws are “not just words on paper.” See “At Federalist Society, Scalia Says He Doesn’t ‘Live or Die’ for Bill of Rights Cases,” The BLT: The Blog of Legal Times (November 19, 2012). Http:// legaltimes.typepad.com/blt/2012/11/
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at-federalist-society-scalia-says-he-doesntlive-or-die-for-bill-of-rights-cases.html. 6. NFIB, 132 S. Ct. 2643 (2012). 7. NFIB, 132 S. Ct. 2644 (citations omitted). 8. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (“The Constitution requires a distinction between what is truly national and what is truly local….”). 9. NFIB, 132 S. Ct. 2642 (2012). 10. See, e.g., United States v. Lopez, 514 U.S. 549, 555 (1995) [quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)]. 11. NFIB, 132 S. Ct. 2646. 12. Transcript of Oral Argument at 11-12, Department of Health and Human Services v. Florida (U.S., No. 11-398). The Florida case was one of several reviewed over several days of oral argument on the ACA. 13. Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court (New York: Doubleday, 2012 ), 276. 14. United States v. Carolene Products Co., 304 U.S. 144 (1938) (upholding a federal statute banning interstate shipment of skim milk compounded with fat or oil other than milk fat) (describing the presumption of “facts supporting the legislative judgment” and requiring proof “preclude[ing] the assumption that [the law] rests upon some rational basis within the knowledge and experience of the legislators.”) 15. Transcript of Oral Argument at 20-21, Department of Health and Human Services v. Florida (U.S., No. 11-398). 16. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197 (1824). 17. The Federalist, No. 10, at 53 (James Madison) (J.R. Pole, ed., 2005). 18. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). 19. Id., 194. 20. 132 S. Ct. 2649-50. 21. Id., (emphasis added). 22. 17 U.S. (4 Wheat.) 316, 423 (1819). 23. Id., 415. 24. Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 853 (1989) (emphasis added). 25. Scott v. Sanford, 60 U.S. 393 (1857) (ruling, inter alia, that the Constitution
did not vest Congress with power to prohibit slavery in the western territories). 26. Compare, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936) (ruling “to a constitutional end many ways are open; but to an end not within the terms of the constitution, all ways are closed”) with NLRB v. Jones & Laughlin Steel Corp. 301 U.S. 1 (1937) (“If [intrastate activities] have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.”). 27. Katzenbach v. McClung, 379 U.S. 294 (1964) (upholding the Civil Rights Act of 1964) (“[If] the legislators . . . have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.” 28. 17 U.S. at 423. 29. Reversing precedent and placing the burdens of justification on government is a candid objective of one influential, enlightening, and provocative revisionist history. See, generally, Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004); id., 335 (arguing against presumptions of constitutionality and in favor of placing “the burden of establishing the propriety of laws on the government”). 30. NFIB, 132 S. Ct. 2600. 31. Shelby County, Alabama v. Holder, cert. granted, (U.S., Nov. 9, 2012) (No. 12-96). 32. Ibid. 33. Petition for Writ of Certiorari, Shelby County, at 24 [quoting City of Boerne v. Flores, 521 U.S. 507, 536 (1997)]. 34. Response to Petition for Writ of Certiorari, Shelby County, I. 35. McCulloch, 17 U.S. 423. 36. Response to Petition for Writ of Certiorari, Shelby County, I.
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for the record
News from the Center LaDonna Sullivan Managing Editor In October, Carl Albert Center doctoral fellow Walter Jatkowski successfully defended his doctoral dissertation, ”Subsystem Contexts and Policy Information: Conditional Effects on Information in Congressional Hearings.” His dissertation chair was Associate Director Glen Krutz, with committee members Cindy Simon Rosenthal, Hank Jenkins-Smith, Mitchell Smith, and Kelly Damphousse. Walt is currently teaching introductory political science classes in Oklahoma while on the academic job market.
Walter Jatkowski, after successfully defending his doctoral dissertation, accepts congratulations from committee chair Glen Krutz (right).
Archives
Archivist Carolyn Hanneman, who served at the Carl Albert Center for 17 years, retired on January 1. In addition to processing and preserving congressional collections, she was actively involved in creating special exhibits and obtaining grants to fund those exhibits. Because of her familiarity with the congressional collections housed at the center, Carolyn provided valuable assistance in person
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and via the Internet to many researchers, including faculty, students, private citizens, and corporate entities. From the congressional collection of Elmer Thomas (1876-1975), Carolyn and Professor Emeritus Richard Lowitt co-edited Senator Thomas’s personal journal and it was published by The University of Oklahoma Press in 2007 under the title Forty Years a Legislator. In these and many other ways, Carolyn provided valuable service to the Carl Albert Center and the University of Oklahoma. A national search is now underway to recruit a new archivist. Anyone who is interested may view the complete job listing and apply at http://hr.ou.edu/ employment. Meanwhile, Archivist Robert Lay has retained Graduate Assistant Magen Bednar and hired a second graduate assistant, Jenna Domeischel, to work with him on the processing of the James R. Jones Collection. Completing this efficient team are four other part-time student employees: Heather Bateman, Emily Kolvitz, Iuliia Shybalkina, and Elyssa Szkirpan. Community Coffee Klatch Members of the Norman community gathered in the Carl Albert Center conference room on October 15 to explore the “A-Files” with Carl Albert Center Archivist Robert Lay. He provided documents, photos, and memorabilia from the center’s archives in his presentation, “Oklahoma in Presidential Politics – An Exploration of the A-Files.” The group also toured the archives and asked questions about how the collections are acquired, processed, and preserved. On November 13, just one week after the general election, the Coffee Klatch group met again to hear Dr. James E. Campbell discuss the 2012 elections and what happened on November 6. A distinguished professor and chair of the political science department at the Uni-
versity of Buffalo, Dr. Campbell is also chair of the American Political Science Association’s Political Forecasting Group. OU Votes 2012 The Carl Albert Center again provided leadership in mobilizing student discussion and participation in the 2012 election. Associate Director Glen Krutz and Civic Engagement Fellows Tracey
Victoria Anne Rickard entered the Carl Albert Graduate Fellowship program in August 2012. She holds a juris doctor degree from Michigan State University, with a concentration in international law; a master of arts degree in international affairs from American University, with a concentration in international politics; and a bachelor of arts degree from Gonzaga University, where, as a Regent Scholar, she studied history and political science. At the Carl Albert Center, Victoria will focus her research on how representative institutions in the U.S. reflect the expanding needs of the international community in fields that are of increasing concern to the global population, such as human rights, trade regulations, and sustainable development.
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for the record Bark and Brandon Ranallo coordinated the center’s participation in a voter registration drive, debate watches, election night watch parties, and issues forums. In a 5-day contest during Constitution Week, OU student groups registered 783 students to vote for the first time. In March 2013, Dr. Krutz, Tracey, and Brandon will represent OU at the annual meeting of the National Campaign for Civic and Political Engagement at Harvard University.
Publications Peake, Jeffrey S., Glen S. Krutz, and Tyler Hughes. 2012. “President Obama, the Senate, and the Polarized Politics of Treaty Making.” Social Science Quarterly 93(5): 1295–1315. Papers Presented Carl Albert Center Associate Director Glen Krutz presented his research, “Explaining Institutional Genesis: The 1820 Creation of the U.S. Senate Com-
Community Scholars 2012, left to right: Dawn Thimmig, Kathleen Anders, Christine Bird, Kayleigh Damphousse, Sara Weaver, Sheyda Zakerion, and Michael Leake, with Professor Glen Krutz at far right.
mittee on Indian Affairs,” at the annual meeting of the Western Social Science Association in Houston in April 2012. He also gave a research talk on the broader Senate Indian Affairs book project in October at Clemson University. Carl Albert Graduate Fellow Tyler Hughes presented his research, “Rethinking Gridlock in Congress: A Duration Analysis of Important Enactments, 1973–2008,” at the annual meeting of the Southern Political Science Association in Orlando on January 4. Women’s Leadership Initiative (WLI) Director Sheryl Lovelady left the university at the end of May to become executive director of the Oklahoma Afterschool Network. Carl Albert Center Director and Curator Cindy Simon Rosenthal has assumed directorial responsibility for WLI. Lauren Schueler, who served two years as graduate assistant for WLI, is now the center’s assistant director for N.E.W. (National Education for Women’s) Leadership. Lauren also coordinates social media for N.E.W. Leadership and for the center. In addition, she helps to organize other programs under the Women’s Leadership Initiative umbrella: Pipeline to Politics, The Appointments Project (TAP), and Oklahoma Firsts. Oklahoma Firsts, the newest of the center’s initiatives in women’s leadership, is a non-partisan networking program that celebrates Oklahoma’s most influential women in business and public
Community Scholars During the fall 2012 semester, seven undergraduate students participated in the Community Scholars program, a public service learning opportunity for a cohort of undergraduates who experience first-hand the dynamics of working within community-based organizations. The internship experience is enriched through weekly seminars and briefings with leaders from the nonprofit sector. Community Scholars work 20 hours per week in their designated internship where they develop professional experience and skills, gain insights into the dynamics of community organizations, and learn how nonprofit organizations function and interact within their broader communities. Community Scholar Kathleen Anders Christine Bird Kayleigh Damphousse Michael Leake Dawn Thimmig Sara Weaver Sheyda Zakerion
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Placement City of Norman Water Department Oklahoma Department of Homeland Security Oklahoma Department of Homeland Security City of Norman Economic Development J.D. McCarty Center for Children with Developmental Disabilities Center for Children and Families, Inc. Bridges (formerly Independent Living Services for Youth)
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service, and supports educational opportunities for future women leaders. The kick-off event was hosted by Governor Mary Fallin at the Governor’s Mansion in Oklahoma City on September 19, 2012. More than 100 women, from a variety of professions and from all over the state, attended. Plans are underway to sponsor two events each year – one in Tulsa (spring) and one in Oklahoma City (fall) – in a format conducive to building business and professional relationships. Participants in Oklahoma Firsts make an annual membership pledge so that this initiative can grow into a sustaining entity to support the programs of the Women’s Staffing of the Women’s Leadership Initiative this year includes Assistant Director Lauren Schueler Leadership Initiative. Bailey Perkins currently serves as (center), Graduate Assistant Bailey Perkins (left) and Project Research Assistant Joanna Yozzo. graduate assistant to the Women’s Leadership Initiative while pursuing Joanna Yozzo is the project research is in her final year of a master’s program a master’s degree in public adminassistant for WLI this year. She is assessin social work with a concentration in istration at OU. Bailey graduated magna ing the availability of leadership proadministrative and community practice. cum laude from Oklahoma City Univergrams for middle school and high school For more information on the women’s sity in 2012 with a bachelor’s degree in girls and will convene a stakeholders leadership initiatives, please visit the political science and history. She is also summit in spring 2013 to identify needs, website at http://www.ou.edu/carlalberta 2011 graduate of the N.E.W. Leadership opportunities, and challenges. Joanna center/leadership/. institute.
The 2013 N.E.W. Leadership institute will be held May 17–21 on the Norman campus of The University of Oklahoma. Application Deadline: 4:00 p.m., March 15, 2013. For more information and to apply, please visit the website at http://www.ou.edu/carlalbertcenter/leadership/newl-about.html or contact Lauren Schueler, lauren.e.schueler@ou.edu, (405) 325-4934.
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for the record
By all accounts, Ann Bartlett, who passed away on January 26, was a civic-minded woman of grace and good humor who was more than equal to the challenges presented by the political career of her husband, the late U.S. Senator Dewey F. Bartlett. Ann Chilton Smith grew up in Seattle, met Dewey Bartlett in California while he was training as a Marine Corps dive bomber pilot in World War II, and married him in 1945. The couple moved to Tulsa where Dewey worked in the Bartlett family business, Keener Oil and Gas Company. Their life together took a turn toward politics in 1962 when Dewey was elected to the Oklahoma State Senate. In 1966, he won the gubernatorial race and became Oklahoma’s second Republican governor – and Ann became a very busy First Lady. Then, in 1972, Dewey was elected to the U.S. Senate where he served until failing health forced him to retire in 1978. He died of cancer the following year. Ann Bartlett continued her involvement in politics by campaigning for presidential candidates Ronald Reagan and Howard Baker, and she was continually active in the Tulsa community among civic groups and nonprofits. Throughout their lives, Ann and Dewey Bartlett promoted pride in Oklahoma’s heritage and encouraged young people to take an active role in their state. After Senator Bartlett’s death, Ann donated his congressional papers to the University of Oklahoma, and she created an endowment in 1985 to assist in processing and preserving the Dewey F. Bartlett Collection, which resides in the Carl Albert Center Congressional Archives. Upon completion of the archival work on her husband’s congressional papers, Ann Bartlett decided to commemorate further the life and work of Senator Bartlett by authorizing that the remaining endowment funds be used to support the Carl Albert Center’s civic education and leadership programs. Here at the Carl Albert Center, we are very grateful for the generosity and vision of Ann Bartlett. Not only did she ensure that Senator Bartlett’s congressional papers will continue to be a rich resource to scholars and the general public, but she also honored the commitment of the Bartlett family to civic education and the training of tomorrow’s leaders. When children and grandchildren see that kind of commitment in their family, they are often inspired to find their own ways to serve. Today, the influence of Ann and Dewey Bartlett can be found in Tulsa’s city hall, where their son Dewey F. Bartlett, Jr. now serves as mayor. His sister, Joan Bartlett Atkinson, is among the special cadre of leaders in Oklahoma who provide support to the women’s leadership initiatives of the
Carl Albert Center Congressional Archives
Remembering Ann Bartlett 1920 – 2013
Ann and Dewey Bartlett on April 21, 1978. Carl Albert Center. And Joan’s daughter, Ann Atkinson, is a 2004 graduate of the center’s N.E.W. Leadership program. The Bartlett family tradition of service continues.
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The Carl Albert Congressional Research and Studies Center 630 Parrington Oval, Room 101 Norman, Oklahoma 73019-4031 (405) 325-6372 http://www.ou.edu/carlalbertcenter
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Visiting Scholars Program The Carl Albert Congressional Research and Studies Center at the University of Oklahoma seeks applicants for its Visiting Scholars Program, which provides financial assistance to researchers working at the Center’s archives. Awards of $500-$1000 are normally granted as reimbursement for travel and lodging. The Center’s holdings include the papers of many former members of Congress, such as Speaker Carl Albert, Robert S. Kerr, and Fred Harris of Oklahoma, Helen Gahagan Douglas and Jeffery Cohelan of California, and Neil Gallagher of New Jersey. Besides the history of Congress, congressional leadership, national and Oklahoma politics, and election campaigns, the collections also document government policy affecting agriculture, Native Americans, energy, foreign affairs, the environment, and the economy. Topics that can be studied include the Great Depression, flood control, soil conservation, and tribal affairs. At least one collection provides insight on women in American politics. Most materials date from the 1920s to the 1990s, although there is one nineteenth-century collection. The Center’s collections are described on the World Wide Web at http://www.ou.edu/carlalbertcenter and in the publication titled A Guide to the Carl Albert Center Congressional Archives (Norman, Okla.: The Carl Albert Center, 1995) by Judy Day, et al., available at many U. S. academic libraries. Additional information can be obtained from the Center. The Visiting Scholars Program is open to any applicant. Emphasis is given to those pursuing postdoctoral research in history, political science, and other fields. Graduate students involved in research for publication, thesis, or dissertation are encouraged to apply. Professional writers and researchers are also invited to apply. The Center evaluates each research proposal based upon its merits, and funding for a variety of topics is expected. No standardized form is needed for application. Instead, a series of documents should be sent to the Center, including: (1) a description of the research proposal in fewer than 1000 words; (2) a personal vita; (3) an explanation of how the Center’s resources will assist the researcher; (4) a budget proposal; and (5) a letter of reference from an established scholar in the discipline attesting to the significance of the research. Applications are accepted at any time. For more information, please contact: Archivist, Carl Albert Center, 630 Parrington Oval, Room 101, University of Oklahoma, Norman, OK 73019. Telephone: (405) 325-5835. FAX: (405) 325-6419. E-mail: cacarchives@ou.edu The University of Oklahoma is an Equal Opportunity Institution
Extensions is a copyrighted publication of the Carl Albert Congressional Research and Studies Center. It is distributed free of charge twice a year. All Rights Reserved. Extensions and the Carl Albert Center symbol are trademarks of the Carl Albert Center. Copyright Carl Albert Center, The University of Oklahoma, 1985. Statements contained herein do not necessarily reflect the views of the Carl Albert Center or the regents of The University of Oklahoma.