even worse than it looks.”
In 2006, after his first term as chief justice, John Roberts discussed his ambitions for his tenure. “Politics are closely divided,” he told journalist and scholar Jeffrey Rosen. “The same with the Congress. There ought to be some sense of some stability, if the government is not going to polarize completely. It’s a high priority to keep any kind of partisan divide out of the judiciary as well.”
Roberts took over the court in the fall of 2005. In his confirmation hearings, he assured senators that he believed in “judicial modesty.” If he had his way, the court would serve as an umpire, not playing or deciding the game but simply calling “balls and strikes.”
But politics happened.
On January 20, 2009, Roberts administered the oath of office to Obama. With well over a hundred million people watching on television and the Internet, the two men muffed the Constitution’s prescribed language. Afterward, commentators questioned whether Obama was actually president (the answer, specified in the Twenty-Fifth Amendment, was yes). The White House asked Roberts to make a hurried trip to 1600 Pennsylvania Avenue NW the next day to readminister the oath.
One year later, on January 21, 2010, the court upended American campaign finance law with its decision in Citizens United v. Federal Election Commission that, under the First Amendment, Congress could not forbid corporations from spending money to influence federal elections. A week after Citizens United, Obama came to the Capitol to deliver his annual State of the Union address. He had looked down at six members of the court seated before him in the well of the House of Representatives and said, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” Democrats reacted with thunderous applause.
Historians could not find another example of a president using the State of the Union to criticize the justices face to face. The episode had not pleased the chief. “To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there,” he told an audience in Alabama a few weeks later. “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court—according the requirements of protocol—has to sit there expressionless, I think is very troubling.” (A White House spokesman prolonged the nascent feud, telling reporters that Citizens United, not Obama’s conduct, was “troubling.”) The president has not confronted the court in his remarks again. As head of the judicial branch, Roberts has gamely continued to attend.
After Citizens United, partisan issues came thick and fast. The court continued its campaign against limits on money in politics. It loosened restrictions on state government aid to religious schools. It adjudicated a dispute over draconian state immigration laws, awarding partial victory to the federal government and partial victory to the states.
And in 2012, as the nation headed into a presidential election, the court confronted the ACA. The act contained an “individual mandate”—a requirement that each taxpayer provide health insurance for his or her household or pay a surcharge on income tax. When the act was passed, the mandate had been controversial, but largely as a matter of policy and politics, not of constitutional law. Afterward, a ferocious ideological blitz by conservative academics and well-funded libertarian groups had changed the discussion, making the mandate a symbol of “tyranny”—and convincing one federal Court of Appeals to void it. The issue reached the Supreme Court in March of 2012 and was decided on June 28, the last day of the court’s term. The stakes could not have been higher. If the court struck down the mandate, the act might collapse. If it upheld it, the president could claim the justices’ endorsement. Not only health policy but the outcome of the election might be at stake.
Whether by design or coincidence, however, the court had given the same verdict the country gave: it’s a mess, it should be designed differently, but it’s OK for now. Roberts had been the key—in a special opinion that gave neither wing of the court what it hoped for, he had upheld the “mandate” as a use of the taxing power.
Conservatives howled at what they saw as Roberts’s desertion of their cause. There were, for the first time in memory, leaks from within the court about his “defection”—a sign that his colleagues on the right were deeply angered. One conservative talk-show host even suggested that Roberts’ treason stemmed from the effects of medication he must take to prevent seizures.
Conservatives failed to notice that the constitutional doctrine that flowed from his separate opinion was far from liberal. The commerce power has been for a century Congress’s main tool for regulating national matters. It reaches not only commercial regulation (food and drugs, for example, are “things” in interstate commerce, while trucks and airplanes are among its “instrumentalities”) but environmental regulation (pollution’s effects cross state lines and thus “affect” commerce “among the several states”) and civil rights (race and sex discrimination in employment and public accommodation also “affect” commerce). But in National Federation of Independent Business v. Sebelius, the chief wrote that Congress could not use the commerce power to require that taxpayers insure themselves and their families. True, millions of uninsured Americans crowded the nation’s emergency rooms. Under the law, they were entitled to emergency care, whether they could pay or not, and the resulting billions in expense profoundly distorted the health-care market. But nonetheless, the mandate was not a regulation of commerce but of “inactivity,” and thus Congress was powerless to prescribe it. He did uphold the mandate as a tax—but the unprecedented “activity/inactivity” distinction was now the law, with potential results no one could anticipate.
The cutback in federal power did not stop there. Until Sebelius, it had been taken for granted that Congress could use the spending power to supplement its regulation of commerce. It could offer money to the states to carry out federal policy. The states could accept the money but needed to comply with federal mandates if they did. The ACA was designed to use this ordinary mechanism as a means of moving millions of low-income Americans out of the ranks of the uninsured. The bill raised the amount of money available to states to fund their Medicaid systems; if they accepted, the states were to expand eligibility to cover more of the “working poor.” The federal government would pay 100 percent of the increased cost of the program for the first three years; then the amount would drop to 90 percent. It was a terrific deal for the states.
And that was the problem. Led by Florida, a number of Republican states made the strange argument that the offer was too good—that the federal government was becoming an organized-crime boss, “coercing” states by making an offer they couldn’t refuse. Medicaid was a politically popular part of their state systems; they now had the choice of expanding the program or losing all their Medicaid funding. The latter was not likely—the secretary of Health and Human Services had discretion to work with states and provide waivers or partial reductions in cases where they didn’t or couldn’t. But at the urging of the anti-ACA faction, a majority of the court (including Justices Stephen Breyer and Elena Kagan) had suddenly created a new limit on the spending power. The federal government could no longer even threaten to cut off “existing” Medicaid funding—the money needed to run the old system it had abolished. That was a state entitlement, and if states chose not to expand the program, the government could do nothing.
Roberts’ strange compromise moved the court out of the line of fire for the 2012 election. But the partisan issues kept coming. In the spring of 2013, the court gutted the Voting Rights Act of 1965, one of the chief achievements of the civil rights movement. Roberts wrote the opinion destroying the act’s requirement that jurisdictions with a history of discrimination—mostly in the heart of the old Jim Crow South—gain approval from Washington before changing their election procedures. His opinion said, in essence, that racial discrimination was now a thing of the past. Since the act was passed in 1965, Roberts wrote, “voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers.” Southern states were now oppressed by the “preclearance” section and deserved their freedom. The covered