Two weeks from today, the U.S. Supreme Court will begin hearing oral arguments over the constitutionality of the Patient Protection and Affordable Care Act. Writing in The New York Times, Adam Liptak offers an interesting look at the various judicial and political views jockeying for control inside the mind of Chief Justice John Roberts, whose vote on the health care law is most likely up for grabs. As Liptak writes:
The case will require the chief justice to choose between two competing instincts.
On the one hand, he views himself as a steward of the court's prestige and authority, and he has called for incremental decisions from large majorities rather than broad but sharply divided rulings….
At the same time, Chief Justice Roberts has embraced an array of assertive judicial projects that have interpreted the Constitution in ways that have fundamentally reshaped American law. The court he has led since 2005 has cut back on campaign spending limits, gun control laws, procedural protections for criminal defendants and the government's ability to take account of race in decisions about employment and education.
Read the full story here.
In an August 2011 column, I examined some of the conservative legal arguments in favor of upholding the individual mandate and concluded that Roberts was the one right-leaning justice most likely to find such arguments persuasive. Here's part of my case:
Remember that during his Senate confirmation hearings, Roberts stressed his belief that the Supreme Court should practice "judicial modesty," a respect for precedent and consensus that he extended all the way to the abortion-affirming Roe v. Wade (1973), which he called "the settled law of the Land." Roberts may approach the Court's expansive Commerce Clause precedents in the same way and vote to uphold the individual mandate as a deferential application of that "settled law."
There's also Roberts's expansive view of congressional power to consider. This was exhibited most recently in U.S. v. Comstock (2010), where he sided with the Court's liberals and endorsed a sweeping interpretation of the Necessary and Proper Clause that allowed federal officials to order the indefinite civil commitment of "sexually dangerous" persons who had already finished serving their prison sentences. The Obama administration's legal defense of the individual mandate rests, in part, on an equally broad reading of that same clause.
In other words, a five-vote majority against the health care law is not a sure thing.