Analysis: Chief Justice Roberts may cast deciding healthcare vote

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Posted: Mar 29, 2012 5:23 PM
Analysis: Chief Justice Roberts may cast deciding healthcare vote

By Joan Biskupic

WASHINGTON (Reuters) - During three days of historic healthcare arguments at the Supreme Court, Chief Justice John Roberts presided with a steady calm and folksy charm.

From his center seat on the nine-member bench, Roberts gently mediated as colleagues interrupted one another's questions this week. He offered a break in arguments on Tuesday so spectators in the packed courtroom could briefly stand and stretch, and then at the end of that Day Two, warmly told lawyers, "Counsel, we'll see you tomorrow."

So it was somewhat startling - and potentially revealing - when Roberts at one point jumped on an assertion by the Obama administration's solicitor general, Donald Verrilli, cutting him off and interrupting another justice who was beginning to ask a question.

It was one of several instances when the chief justice showed he was mindful of the Supreme Court's place in history as it resolves one of the most pressing questions of government power in decades. That backdrop could guide the chief justice's vote and be a crucial factor in the fate of the law, at the core of which is an "individual mandate" that most Americans buy health insurance by 2014 or face a penalty.

If their usual practice holds, the justices will convene privately on Friday in a small oak-paneled conference room adjoining the chief's chambers to take a preliminary vote. With no law clerks or secretaries present, Roberts will open the discussion and cast the first vote. The justices will go around the table in order of seniority, voting and laying out their rationales. A decision in the dispute is not likely until late June.

On the most crucial question - whether the individual insurance requirement is valid - it appeared that Roberts, a conservative appointed to the court by former President George W. Bush, could easily cast the deciding vote.

Both he and the usual swing-vote justice, Anthony Kennedy, seemed right in the middle of the two ideological wings. Whichever way Roberts goes, legal analysts on both sides of the case predict, the chief justice is likely to write the main opinion for the court.

MILESTONES

But despite Roberts' past association with the Republican party and a reputation for overseeing judgments that have favored the right, it remains far from clear how he will cast his vote.

Throughout the arguments this week, he referred to historic milestones, including of the New-Deal era when the justices bolstered federal power. Overall, he suggested from his questions he was weighing whether a decision to strike down the individual mandate would be a break from past court cases or be in sync with them. Whether that means he is with the Obama administration or against it, is still a matter of speculation.

Tuesday's exchange with Verrilli underscored Roberts' regard for the court's place in the sweep of history. The justices were considering whether the law's centerpiece, the mandate requiring people to buy insurance, violates the U.S. Constitution.

Verrilli told the court that if it were to strike down the mandate, it would be rolling back high-court decisions from the past century.

"I think it would be a very substantial departure from what the court has said," Verrilli insisted, noting that in past cases the justices have ruled that "when Congress is regulating economic activity with a substantial effect on interstate commerce (the regulation) will be upheld."

If the court accepted the arguments of the challengers, Verrilli warned, it would be returning to a "Lochner-style" approach. During that early-1900s era, an activist conservative court elevated business interests as it rejected a host of labor laws, including in the 1905 case of Lochner v. New York, which struck down limits on bakers' hours.

Stopping Verrilli mid-sentence, Roberts declared that the Lochner cases involved state regulations. "And it seems to me it's an entirely different question when you ask yourself whether or not there are going to be limits on the federal power," Roberts said, "as opposed to limits on the states, which was the issue in Lochner."

A DEFINING MOMENT

Resolution of the healthcare cases will help define the Supreme Court under Chief Justice Roberts as well as the presidency of Barack Obama.

The challenge to Obama's signature domestic achievement was brought by 26 states, the National Federation of Independent Business and individuals who do not want to purchase insurance.

The last time the Supreme Court was so prominent in the public eye was in 2000, during the Bush v. Gore Florida election dispute. Not yet on the bench, Roberts helped then-Texas Governor George W. Bush with the case.

Roberts, a native of Buffalo who grew up in Indiana, was long involved in GOP politics - he worked in the Ronald Reagan and George H.W. Bush presidential administrations - yet he also had deep connections to the Supreme Court. He was a law clerk in 1980-81 to then-Associate Justice William Rehnquist, who went on to become chief justice in 1986 and whom Roberts succeeded seven years ago.

Before joining the bench, Roberts, as a government lawyer and then private practitioner, argued 39 cases at the high court. For good luck before each argument, he would touch the bronze sculpture of the great 19th-century chief justice, John Marshall, on the first floor of the court building. Roberts first became a judge in 2003, when President George W. Bush appointed him to a federal appeals court in Washington.

When Bush elevated him to the Supreme Court in 2005, Roberts became the youngest chief justice in a century. Now age 57, Roberts has overseen a court that has shifted to the right in recent years, ruling for stricter limits on abortion rights, curtailing race-based policies intended to benefit minorities, and lifting campaign-finance regulations, most notably in the 2010 Citizens United v. Federal Election Commission case.

Roberts is sensitive to partisan criticism of court decisions. After President Obama denounced the Citizens United ruling -- which lifted restrictions on corporate and labor union spending in elections -- during his State of the Union address, as Roberts and other justices sat in the audience, Roberts likened the atmosphere to a "political pep rally."

More broadly, Roberts has emphasized that the public should view the court as above politics. "They don't elect us," he said in a C-SPAN interview. "If they don't like what we're doing, it's more or less just too bad."

A PRELIMINARY VOTE

In this week's session, Roberts and his fellow conservatives were tough on Verrilli and the Obama administration's stance that the individual mandate flows from Congress's longstanding power to regulate interstate commerce. Yet oral arguments are not the end of the matter. Justices typically probe both sides and play devil's advocate with their questions.

The real test will begin on Friday, when the justices will likely take their preliminary vote behind closed doors for the week's arguments and begin the process of drafting opinions. At that point, the justices usually rely on their own past court cases and the lawyers' written briefs -- much more than anything heard during the more than six hours of oral arguments. Based on their records and questions, it appeared that all four liberal Democratic appointees (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) would vote to uphold the centerpiece individual mandate. Two of the five conservatives (Antonin Scalia and Samuel Alito) were especially vocal against it. Justice Clarence Thomas, as is his habit, asked no questions, yet based on his record he is likely to find Congress exceeded its power in the law.

If the centerpiece of the law is to survive, the four liberals would need the fifth vote of either Roberts or Kennedy.

As Roberts looked backward to past decisions, he also suggested during arguments he was concerned about how a ruling in the current dispute would steer the court in future cases. He voiced worry, not only about limits on congressional power, but limits on when judges intervene in dilemmas of social policy.

His questions reflected his interest in the Supreme Court's long-term institutional authority and reputation, which is likely why he did not buy Verrilli's premise that the court could be returning to an era known for conservative activism.

"It's telling that the chief was so quick to pounce on that," said University of Notre Dame law professor Richard Garnett, referring to the exchange on the Lochner era. "He was saying, ‘We're not going in some rogue direction. We have a very narrow task here.'"

Garnett said the chief suggested by his comments he wanted people to understand that the court was not in a position to impose a policy choice on Congress but rather to ensure the proper boundaries of federal power.

Garnett, who like Roberts was a law clerk to the late chief justice Rehnquist, earlier had speculated that the healthcare law would be upheld. He said that after reading the challengers' briefs and listening to arguments this week, he is holding off on predictions.

(Reporting by Joan Biskupic; Editing by Amy Stevens, Howard Goller and David Brunnstrom)