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Introduction

The Branch That Works

As late as Friday, there were rumors that the court might not open on time. Since 1917, the first Monday in October had been inviolate as the first day of the court’s October term. But the Republican House and President Obama entered October seemingly locked in a death spiral. The Republican majority, impelled by its radical “Tea Party” wing, had returned from its summer recess with one demand: the president must agree to the repeal of his signature accomplishment, the Affordable Care Act (ACA). It was an extreme, almost surreal, demand. The Supreme Court had upheld the ACA—in most of its provisions—in June 2012. It had then been the major issue in the presidential and congressional elections of 2012, and the voters had, if not enthusiastically, decisively approved it. Polls showed that the voters—Republicans, Democrats, and independents—were dissatisfied with the act, but they wanted Congress to fix it, not repeal it.

But the Republican “base”—far to the right of the country or even Republican voters generally—wanted blood. A faction in the House blocked approval of new funding for the government and promised to restore it only when the Democrats agreed to total repeal of the ACA. It was as if Confederate generals had arrived at Appomattox Court House demanding Lincoln’s resignation.

On October 1, 2013, the great shutdown began. Only essential federal workers were to report. The Capitol was nearly deserted. On October 3, the US Capitol police shot and killed a mentally disturbed woman who seemed to be trying to drive a car onto the grounds. Senators and house members cowered inside the building while the high-speed chase went on—protected by men and women whose paychecks they had blocked.

Just to the east of the Capitol, at the corner of E Capitol Street and First Street NE, the Supreme Court’s marble palace loomed like a giant question mark. The court is an independent branch of government, of course, not subject to Congress’s control. But as Alexander Hamilton had pointed out in 1788, it has neither “the sword nor the purse.” Lyle Deniston, the dean of Supreme Court reporters, wrote in late September 2013, “Although the court does have awesome powers, it has no authority to print its own money.” It would be a telling bit of symbolism if the court were not able to begin its October term on schedule—a visible sign that, in the words of scholars Thomas E. Mann and Norm Ornstein, “it’s 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 states responded with a flurry of laws making it harder for the poor, the elderly, and minorities to register and vote. Critics said that perhaps things had not changed quite as much as the chief had claimed.

The issue of same-sex marriage had roiled electoral politics for a decade. After the Massachusetts Supreme Judicial Court decided that same-sex couples had a right to legal marriage, state after state held referenda approving state constitutional bans on anything but the union of “one man and one woman.” Before a single gay couple was allowed to wed, Congress weighed in by forbidding the federal government to recognize any same-sex unions. In June 2013, the court had (as with the ACA) split the difference. It struck down the federal Defense of Marriage Act (DOMA) and ordered the federal government to stop discriminating against same-sex couples legally married under state law, but it used a technical doctrine—“standing to sue”—to avoid ruling on Proposition 8, a California state constitutional amendment banning gay marriage. The DOMA opinion, however, convinced federal judges around the country that same-sex marriage was required, and state marriage bans started falling like dominoes around the country.

Would 2013 mark a break from the court’s polarizing role? The first case on its docket was a fresh challenge to federal campaign regulations, one with the potential of changing the political playing field as sharply as Citizens United.

The attacks on the ACA continued, with a group of for-profit corporations demanding that they be allowed to withhold coverage of contraceptives from their employees despite the act’s requirements. The corporations (the lead plaintiff was a family-owned chain called Hobby Lobby) claimed that providing the required coverage violated their right to the “free exercise” of their religion, which frowned upon some methods of contraception. Like the “inactivity” argument, the idea that corporations had “religion” and that commercial regulations could “burden” their “free exercise” was new. Again, whatever the court decided, a large part of the country and one of the political parties would be furious.

The court had agreed to hear a town government’s plea for permission to impose Christian prayer on public meetings. Also on the docket was a fresh challenge to affirmative action and a case that took dead aim at public-employee labor unions.

At the outset of Obama’s first term, the court had enjoyed the confidence of the public. In a Gallup poll before the October 2009 term, 61 percent of those surveyed approved of how it was doing its work, with only 30 percent disapproving. In late September 2013, however, only 46 percent approved, a statistically insignificant one point higher than the disapproval rate of 45 percent. Even the reasons for the trend were polarized: Thirty percent told Gallup that the court was “too liberal” while 23 percent said it was “too conservative.” Roberts himself got good marks (55 percent in the fall of 2013), but the court was trending downward.

The government shutdown would last until October 17. But as SCOTUSblog’s Deniston noted, the court must have found reserve funds in its budget somewhere. On the scheduled day, Monday, October 7, the nine justices emerged from behind the velvet curtain to hear the case of McCutcheon v. Federal Election Commission. While the rest of the government lay in suspended animation, the judicial branch was at work.

But if there was a swagger in the steps of the justices as they entered the courtroom, it may not have entirely been deserved. True, the court kept operating through thick and thin. (It was not unusual for the Supreme Court to hold oral arguments during blizzards that closed every other government office in Washington.) But was it entirely innocent during the creation of the partisan preening and thinly veiled hatred that poisoned the rest of the system?

In December 2000, the court had inserted itself into the 2000 presidential election and chosen the winner. In doing so, it put in office perhaps the single most polarizing political figure of our time, George W. Bush. Rich individuals and PACs, emboldened by the court’s campaign finance decisions, have flooded the airwaves with ads that portray candidates and officeholders as evil, dishonest, dangerous, and almost satanic. No single force has done more to increase partisan hatred and suspicion than the toxic flood of anonymous electronic accusation and innuendo that now forms the core of American political campaigns. In 2004, the court was offered a chance to put limits on the computer-driven partisan reapportionment that is separating the House of Representatives into safe Republican and Democratic districts; it refused even to consider it. In 2008, the court also washed its hands of any limits on voter ID laws—more or less openly devised by Republican state legislatures to reduce turnout among Democratic voters.

In fact, as the court convened in October 2014, many state legislatures were at swords’ point over an issue the court had created out of thin air: whether to expand Medicaid in line with the terms of the ACA. Had the court not created its new rule against Congressional “coercion,” there would have been nothing to fight over.

No one who observes the chief justice would doubt that he was quite sincere in his wish for greater unanimity, greater judicial modesty, and a widely respected Supreme Court quietly calling “balls and strikes.” But history shreds good intentions. Like any other political figure, the chief is limited by internal and external forces. The nation is divided; its legal system is also divided, no less than any other part. Lawyers across the country—some of them backed by almost unlimited funding from political and ideological groups—are working assiduously to destroy labor unions, health-care programs, environmental initiatives, and civil-rights protections. Other well-funded groups are determined to preserve precedents from earlier courts that furthered minority rights and increased protection for criminal suspects.

And the chief is only one of nine. Many of his conservative colleagues—particularly Justice Antonin Scalia, the senior conservative, and Justice Samuel Alito, the junior—are ready to reverse decades of precedent in pursuit of their conservative agenda.

Beyond that, it is a melancholy truth that human beings are capable of wishing for mutually incompatible things—order and freedom, for example, or safety and excitement. Both wishes may be sincere, but they may also be at war with each other. In his desire for harmony, acclaim, and hegemony, the chief was also fighting himself.

Ronald Reagan’s spirit brooded day and night above the Roberts court. Its five conservative members all, in one way or another, owed their eminence to Reagan. Reagan appointed Justices Scalia and Kennedy. He plucked the young Clarence Thomas from obscurity and named him head of the Equal Employment Opportunity Commission, his first step toward to the high court. John Roberts and the young Sam Alito had been foot soldiers in the Reagan revolution, junior attorneys in the Reagan White House and Justice Department.

A decade after his death, the soft focus of historical memory has transformed Ronald Reagan into a cheering symbol of national esprit. But in life, he had been a polarizing figure. A rollback of civil-rights protections; an end to affirmative action; destruction of public-employee unions; deregulation of the economy and the environment; and sharp limits on (even abolition of) popular safety-net programs like unemployment compensation, Medicaid and Medicare, and even Social Security—these things were unpopular when Reagan championed them and no more popular in 2014 than they had been during the 1980s.

The question that loomed over the Supreme Court and its Reaganite majority was whether their hearts would lead them to write Reaganism into the law and the Constitution, finding for their leader a judicial victory in death to compensate for the complete political victory that eluded him in life. If the court took that path, then Roberts’s “stability” might be postponed indefinitely.