Saturday, June 30, 2012

Really long law post I typed on my iPad when I could not sleep

While I don't normally delve into the political realm on this blog because I don't know anything about politics, the interesting developments in the legal (entirely non-political, of course) world this week have spurred me to action. I spent this exciting Friday night reading the health care decision (which has such an unwieldy name it will be interesting to see what future decisions call it: NFIB, Sebelius, Obamacare seems too colloquial for legal writing, but I guess we will see) and the immigration decision, Arizona v. United States. I need to spend some more time with the immigration decision, but I do have some thoughts on the health care decision, although I'm sure you can find better insight throughout the web, or maybe even scrawled on a bathroom stall door. But nevertheless, I'll give you what I got.

As I said above, this is not a political analysis by me, whether that sounds convincing or not. For anyone who has read the opinion, my statement clearly echoes Chief Justice Roberts' statement that he was not making policy judgments but simply applying the law. Despite his best efforts to downplay the political, the prevailing sentiment appears to be that Roberts voted as he did to protect the legitimacy and esteem of the Supreme Court, which, while not a political decision, is still a decision not grounded in the law. The sentiment also appears to be that if Roberts had made a political decision he naturally would have sided with the conservatives, and,  if this sentiment is so pervasive, it seems pointless to attempt to protect the legitimacy of the Court because everyone has already decided that all of the decisions are political. However, in our current metaculture, one can hardly achieve any goal without a harsh spotlight focused on the attempt to achieve it. Thus, Roberts may have ultimately decided that making his decision was more important than why he made it.

Further, Roberts follows the Rehnquist model for being the Chief, and Rehnquist cared deeply about the esteem of the Court. He knew that the Court's power only exists when the other branches of government and the people respect its decisions because the Court has no army to enforce its decisions. But when a Chief begins to place the opinion of the Court before the Opinions of the Court, legitimacy can easily suffer. But, these decisions aren't made in a vacuum. Roberts did not make his decision entirely for any one reason. This country is so polarized that any decision is simultaneous grounds for sainthood and impeachment, so Roberts obviously understood that no decision would improve the view of the Court in everyone's eyes. So why did he decide as he did? Let's consider.

First, it's true that labels often don't matter. Early on in law school you quickly learn that calling a thing X does not make it X. Stating in a contract that the contract is not unconscionable and the interest rate is not usurious, does not make it so. Roberts used this first year maxim to explain why the individual mandate, though enforceable by "penalty," was really a tax. Whether this was persuasive depends on one's point of view, but it is well established that a court should interpret a statute in a way that makes the statute constitutional, if such an interpretation is reasonable. The dissenting Justices called what Roberts did "rewriting" the statute, although it is not as though the statute would now operate differently. Roberts ignored the labels, said the mandate acts as a tax, and construed the statute in a way he believed constitutional. To me, his analysis is defensible and well written. Like Rehnquist often did, Roberts wrote the opinion to be understandable to the layman. He clearly explained the trip from A to B to C; whether people care to ride along is a different issue.

Second, the decision to strike down the Medicaid expansion followed from clear precedent that one also learns early on in law school. The federal government cannot make "Godfather" offers to states when conditioning federal funds. The removal of all Medicare funding from a state is, as Roberts wrote, a gun to the head. South Dakota v. Dole (which is one of those case names with a hidden joke because it is about federal highway funding to states, although welfare funding would be funnier) pretty clearly prohibits the federal government from this kind of coercive conditioning. Thus, Roberts' decision is again defensible and clear. Lots of people will not like it, but it is clear how he gets there.

Also, like the best Rehnquist opinions, this opinion by Roberts seems strange and unexpected until one considers how well it solves the tangle of problems with which the Court was faced. No one really expected the "individual mandate as tax" argument to go anywhere, but Roberts saw how he could use it to uphold the constitutionality of the individual mandate, not expand the Commerce Clause, respect the legislative branch, and improve the perception of the Court. Being a good lawyer is about solving multifaceted problems, and this often means sacrificing intellectual purity for meaningful solutions. And let there be no doubt, Roberts was a great lawyer. While some will want to vilify Roberts for (allegedly) placing results before process, time, not men and women in robes, will be the ultimate judge.

On a different note, there is definitely some weirdness in the opinion that is highly noticeable to anyone who has read more than a few Supreme Court opinions. I do not claim to be the first to present these ideas, but I read the opinion without having read any commentary and some things jumped out at me. (Kat can vouch that I made these comments before reading anything else, although once I looked online these same thoughts were presented better and more clearly, but, nevertheless, I think they are interesting and my audience is captive). I do think Roberts switched sides at the very end. There are some obvious clues that point to this. Most are in the dissent by the conservative Justices. Rather than attacking Roberts' majority opinion, as a dissent normally would, the dissent takes apart the Government's arguments in its brief. Although the conservatives never miss an opportunity to flay the government when it wants to expand federal powers, it does not seem right to just ignore the opinion of the Court when it goes the other way. The conservatives' dissent definitely reads like it was the majority opinion at one time. In fact, my theory is that Roberts wrote it originally (although less harshly), he then abandoned it, wrote his own new majority opinion, Scalia came in and harshened up the dissent a bit but did not so revamp it that it actually dealt with the new majority opinion, and because the Justices wanted to leave for vacation, the whole thing went out. This is obviously highly speculative, but what leads me to believe Roberts originally wrote the dissent is that all four of the other conservatives signed it together -- it has no single drafter. This is relatively unusual. To me, if the Justices left the conference with Roberts already with the liberals, Scalia would have written the dissent. It seems more likely that they left the conference with Roberts with the conservatives and Roberts, as the Chief, gave the opinion to himself. My conjecture will take awhile to prove. We can hope Roberts will release his papers after he retires or dies and we can figure out what happened as June 2012 came to a close.

While I'm not a huge fan of the conflict and animus that is attendant with politics today, I do like it when there is a big Supreme Court case because it gets people interested in the Court and interested in the law. Maybe some people will even read Roberts' opinion and find they enjoy it. I certainly did. Because regardless of one's opinion of the Supreme Court or the national perception of the Court, the Justices, like judges across this country, have to give their reasons for their decisions. They cannot rely on dogma or morals or "common sense" or polling; they have to "show their work" and that is real justice.

(If any of this is interesting or made sense, it is largely in part to Professor Toni Massaro's Constitutional Law II class at the University of Arizona.  Professor Massaro shows students how to analyze Supreme Court decisions to a depth that goes beyond the holding and actually considers all of the factors that could play a role.  The parts that are boring or just plain wrong are, of course, mine.)