July 6, 2012

Some preliminary thoughts about the Supreme Court’s health care decision, National Federation of Independent Business v. Sebelius :

Chief Justice Roberts’ opinion, in effect the majority opinion,⁵⁵ begins with a statement of judicial principles, a sure sign that criticism is expected. One of those principles, while comforting to conservatives, is false both as a statement of what the Court does and what it must do: "Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments." The Justices often may lack the expertise — more to the point, the wisdom — to make such judgments, but they make them, and they necessarily do so: many decisions, perhaps most, alter or refine the law to some extent, and each alteration or refinement makes or confirms a policy. Many of those policies are made in the first instance by the legislative or executive branches, but some come directly from the Court’s earlier decisions and some are created by the decision at hand. The Justices may pretend that they merely interpret the law, but that is disingenuous, and candor might well lead to better decisions.

The quoted statement is followed by another which cancels the element of modesty and caution in the first: "Our deference in matters of policy cannot, however, become abdication in matters of law. ‘The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written’,” citing Marbury v. Madison . In effect the Chief Justice is saying that Congress’ power to legislate is limited, but the Court’s power to undo its work is not. I’m being a little unfair, as the power of judicial review, which we (almost) all accept, necessarily allows the Court to overturn legislation which offends the Constitution. However, that power can be exercised with due respect for Congress’ judgment and with due regard for the anti-democratic nature of a decision by nine unelected people with lifetime jobs, or it can be exercised smugly and arrogantly, too often the case. (The latter tendency sometimes prompts conservatives to complain of judicial activism, but only when there is a liberal result).

There is a collateral but intriguing issue: did Chief Justice Roberts write the majority opinion which bears his name and the opinion called the Joint Dissent, issued by Justices Scalia, Kennedy, Thomas and Alito? When I saw a headline suggesting that he had, I thought that the notion was absurd, but when I read the Joint Dissent, I saw several indications that it had been written originally as a majority opinion. Here’s the pattern:

Unlike most dissents, it is not attributed to a single Justice. The usual form would be something like "Justice Scalia, with whom Justices Kennedy, Thomas and Alito, concur, dissenting." Here we have "Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting."

The Joint Dissent is divided into two parts, significantly different in form. The first — let’s call it J.D.1 — covers the first 46 pages, and is written in the style of a majority opinion. A dissenting opinion normally refers to "the majority" or to "the Court" in the sense of the majority, or to "the Court’s opinion," or in some other way indicates that it is in disagreement with the outcome and/or the rationale. Apart from one ambiguous comment,⁵⁶ J.D.1 does not do that, nor does it refer to the Chief Justice, by name or title. It refers to the opinion of Justice Ginsburg as "the dissent," an odd reference from a dissent.

Most of J.D.2 also appears to have been written as a majority opinion, but in several places it announces that it is indeed a dissent. J.D.2 begins in the midst of the opinion’s outline, at part IV.F, and changes the opinion’s course abruptly. Part IV.E. "held" that the Medicare expansion is unconstitutional, but part F. begins: "Seven Members of the Court agree that the Medicaid Expansion, as enacted by Congress, is unconstitutional." (emphasis added). Suddenly the Joint Dissent is aware of how the votes sorted out on one issue and that it is, as to that issue, a dissent. On the next page, it notes that "The Court today opts for permitting the cut-off of only incremental Medicaid funding," and refers to "the Government’s remedy, now adopted by the Court," indicating again an awareness of an adverse outcome.

However, beginning with part V. and running on for another fifteen pages, J.D.2 again reads as a majority opinion. Instead of disagreeing with the majority, as a dissent would, the opinion refers to deficiencies in the statute and rejects the government’s arguments. Again, the usual references to the majority opinion are absent. It appears to assume that the individual mandate has been struck down, as it would have been if this were the majority opinion.

Finally, on page 64, it becomes a dissent again; in six paragraphs it summarizes its disagreement with the outcome.

Did Chief Justice Roberts write the Joint Dissent? I have no idea, although the fact that none of the Joint Dissenters claimed authorship might suggest that. It certainly looks like it began life as a majority opinion and, if that is so, Roberts must have been on that side at the time of drafting. ⁵⁷¹

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55. As to some issues, the votes are set out in the preamble; as to some, one must infer the result from the text of the "Joint Dissent."
56. Referring to the government’s alleged lack of attention to one issue, the Joint Dissent complained, "One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression." The reference to "this Court" might be taken to be a criticism of the majority.
57. After reading the opinion, I looked up an article which had raised the Roberts issue. The author, Paul Campos, professor of law at the University of Colorado at Boulder, analyzed the Joint Dissent in more or less the way I have. See http://www.salon.com/2012/07/03/roberts%20wrote_%20both_obamacare_opinions/ . There is an equally intriguing suggestion as to Roberts’ motives in writing the actual majority opinion in an article by Andrew Koppelman, Professor of Law and Professor of Political Science at Northwestern University. See http://www.salon.com/ 2012/07/05/roberts_ crafty_victory/ .