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TDS Co-Editor William Galston: What the Supreme Court Will Consider

This item by TDS Co-Editor William Galston is cross-posted from The New Republic.

In the weeks preceding the Obamacare case, many veteran Supreme Court-watchers could not bring themselves to believe that a majority of the justices would find the individual health insurance mandate unconstitutional. But now that the oral argument is over, the consensus has abruptly shifted, with increased focus on the supposedly ironclad opposition between the five "conservative" justices and the four "liberals."

Indeed, as commentators consider what kind of decision the Court will hand down in June, they have been increasingly tempted to apply a simple "it's all politics" template: Liberal justice will favor the individual mandate, conservatives will oppose it, case closed. But that's hardly ever the right way to look at the Court, and it's certainly wrong now.

In the first place, the general assumptions that individual justices bring to particular cases are typically jurisprudential rather than straightforwardly political. Some have broad and well-developed views about how the constitution should be read and interpreted. (On the current court, Antonin Scalia, Clarence Thomas, and Stephen Breyer are the best examples.) Others have firm views about the appropriate role of the Court in the constitutional process: Felix Frankfurter famously counseled restraint and maximum feasible deference to legislative decisions, while Earl Warren believed that it was the Court's responsibility to defend individual rights--against popular and legislative majorities if necessary.

Second, there's no single model of conservative jurisprudence--or of liberal jurisprudence, for that matter. For example, press coverage often treats Thomas and Scalia as twins. But they aren't. Thomas is much more willing than Scalia to overrule prior constitutional decisions even when they are venerable and entrenched. In jurisprudential language: Scalia incorporates stare decisis into his decision-making calculus, while Thomas believes that if a constitutional case was wrongly decided a century ago, its age shouldn't tip the scales against reversal.

Third, justices have different dominant concerns. For Anthony Kennedy, it's individual liberty, an issue to which he returned repeatedly as he grilled Solicitor General Donald Verrilli on Tuesday. Early in that day's proceeding he asked, "When you are changing the relation of the individual to the government in this ... unique way, do you not have a heavy burden of justification to show authorization under the Constitution?" Later on he expressed his worry that the individual mandate "changes the relationship of the federal government to the individual in a very fundamental way." By contrast, Justice Scalia and Chief Justice Roberts appeared more concerned about the distinction between the federal government's enumerated powers under the Constitution as contrasted with the broader police power of the states. (That said, all the conservative-leaning justices seemed to take seriously the distinction between regulating commerce and forcing individuals to enter commerce, and they seemed uniformly concerned that the government had failed to establish principled limits to the scope of the Commerce Clause.)

Indeed, arguments in the Supreme Court take place against a historical backdrop--not only the Court's history but also that of individual justices. When the justices enter the conference room to vote on current cases, they bring their past decisions along with them. For example, in his concurring opinion in Gonzales v. Raich, Scalia offered a broad interpretation of how the Commerce Clause and the Necessary and Proper Clause work together to authorize federal government regulation to activities that affect interstate commerce, even when those activities are not themselves part of interstate commerce. Many seasoned Court-watchers believed that Scalia would have a hard time squaring that opinion with a vote against the constitutionality of the individual mandate. But on Tuesday, Scalia argued, as he has before, that the two adjectives in the Necessary and Proper Clause impose separate and distinct tests: A particular means to an end may be necessary without being proper, especially if it runs into a wall of constitutional prohibition. The forcefulness with which Scalia made this distinction showed that he was acutely aware of the implications of his own judicial record on these matters.

It's also important to point out that there's no necessary correspondence between jurisprudential and political views. For example, Antonin Scalia is a staunch Catholic, so one might expect him to favor constitutional doctrines that mandate broad accommodation of religious liberty. But just the reverse is true: Scalia authored the majority decision in Employment Division v. Smith, widely regarded as the most anti-accommodationist case in decades. That decision made it clear that Scalia fears anarchy much more than tyranny. For more libertarian conservatives, such as Anthony Kennedy, the reverse is the case--hence his majority decision in Lawrence v. Texas, which struck down a Texas law criminalizing sodomy and was couched in high-minded prose that Scalia has since attacked and mocked mercilessly

And finally, many justices--and especially chief justices--think hard about the consequences of their decisions for the standing of the Court over time. At the height of the constitutional controversy over the New Deal in the mid-1930s, Chief Justice Charles Evans Hughes shifted ground to avert an all-out confrontation between the Court and the Roosevelt administration. In the early 1950s, Chief Justice Warren maneuvered behind the scenes for two years to ensure a unanimous decision in Brown v. Board, a case he knew would test the Court's legitimacy. And today, Chief Justice John Roberts surely understands that a root-and-branch assault on the Affordable Care Act would thrust the Court into the center of presidential politics to an extent unseen since 1936. In that way, the question of whether Roberts would participate in a 5-to-4 decision overturning the individual mandate--thus creating the biggest confrontation between the president and the Court in 75 years--is not only a question of his legal theories, but also of his commitment to the legacy of the Court as an institution.

For example, it's possible to imagine Roberts joining with the liberals for the sake of preserving the institutional reputation of the Court, while assigning himself the majority decision so he can write the narrowest possible opinion upholding the mandate--perhaps on the grounds (which he stated twice) that the government isn't forcing individuals to enter the health insurance market because everybody is already in it, willy-nilly. He could insist on the doctrinal point that the Commerce Clause doesn't give the government the power to compel individuals into commerce while denying that health insurance is an instance of the forbidden compulsion. Conversely, if Roberts gives priority to his own jurisprudence over the Court's institutional standing and thereby provides the fifth vote to overturn the mandate, he could assign himself the majority opinion with an eye to minimizing the damage. He might well argue that his position does not reflect ideological hostility to expansive government action. The government could have used its taxing power straightforwardly to create a much more statist health insurance system than does the ACA, he might remind: "Medicare for all" would lie beyond the reach of constitutional challenge.

None of this is to say that the Court won't find a way to invalidate the controversial core of the ACA. (I'd be stunned if they swept the entire law aside, however.) But it is to say that the path to overturning the law is more winding than a simple count of liberal and conservative justices would suggest. And it's very likely that the Justices--and the Chief Justice in particular--will be tempted to place their decision somewhere in the middle of that path.