WASHINGTON -- A Kaiser Family Foundation poll published as the Supreme Court went into mid-term recess last week reveals that nearly 60 percent of Americans think the justices will be guided by ideology rather than legal analysis when they decide the constitutionality of Affordable Care Act's controversial individual mandate requiring people to purchase health insurance.
But in the first half of this term, the Court has shown more nuanced considerations, suggesting conservatives -- including Chief Justice John Roberts -- may bridge the divide between the five Republicans and four Democrats.
Roberts, in particular, "is very cautious of the institutional credibility of the Court," said Barry Friedman, a New York University law professor.
By achieving unanimity in major cases that pit religious liberty against civil rights, Republicans against Democrats, and law enforcement efficiency against personal privacy, the Roberts Court showed an ability to reach narrow agreement on topics with clear ideological lines.
The decisions show that Roberts "is working very hard, as apparently are some of the justices, to ensure that the Court doesn't draw negative attention to itself," Friedman said.
Not that Roberts' record reflects this. In his six years on the bench, Roberts has led the Court, often with 5-4 decisions, in a more conservative direction on business, civil rights, and constitutional law. Roberts is not oblivious to the fact that such decisions impact how the public views the Court. In the Citizens United campaign finance decision, Roberts, in damage-control mode, wrote separately to reiterate his commitment to "the important principles of judicial restraint and stare decisis" -- or respect for precedent -- despite his vote in that case to cast aside past case law.
Fealty to stare decisis is among the "certain decision-making rules that guide [justices'] actions and sometimes prohibit them from acting consistent with their ideological preferences," said Forrest Maltzman, a professor of political science at George Washington University and co-author of the book, "The Constrained Court: Law, Politics and the Decisions Justices Make." Along with respect for precedent, Maltzman identified awareness of the legislative and executive branches' policy preferences as a rule the Court uses for legitimacy against public cynicism.
Yet Citizens United, which allows unlimited corporate and union political spending, casts a partisan shadow over the Court two years later. For many, the five-member conservative majority's decision to strike down an act of Congress may presage a willingness to do the same in the health care cases.
Roberts' Citizens United concurrence suggests that precedent should only be overturned when its "validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent's underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake." Maltzman's co-author, Professor Michael Bailey of Georgetown University, finds none of these factors present in the health care cases.
"I just have the sense that Roberts will go in to find a way to uphold the law, but in a way that narrows," without overturning the key 1942 decision that established Congress' broad powers to regulate interstate commerce, Bailey said.
In a January interview on the Hoover Institution's web series, "Uncommon Knowledge," Professor John Yoo of Berkeley Law, a prominent conservative, predicted Justice Anthony Kennedy, the Court's moderate vote, and Roberts would likely to join the four liberals to uphold the Affordable Care Act's individual mandate. "Roberts cares about the institutional permanence of the Court and protecting it from politics," Yoo said. "I could see Roberts going with the majority" to exercise his prerogative as chief justice "to control who got to write the opinion to keep it as narrow as possible."
According to the Kaiser poll, this kind of decision would be responsive to public opinion. While 67 percent of those polled don't believe health care reform's individual mandate is constitutional, half want the the law kept as it is or expanded. Narrowing Congress' commerce powers without striking down the health care mandate, then, would address the public's constitutional concerns without altering a law that promotes a policy that most people like.
There remains the chance that Roberts' work this term has simply served to collect enough good will to spend on an explosive second half headlined by the demise of the individual mandate. Supreme Court history is heavy on early-term unanimity and late-term divisiveness.
Perfect unanimity has never been necessary to protect the Court's integrity, nor is it expected in the health care cases. Justice Clarence Thomas, with his well-known antipathy toward Congress' broad, post-New Deal powers, is a lock to vote against the health care mandate's constitutionality.
Another signal that Roberts will fight against a 5-4 decision may have come during his defense of his colleagues' ethics in his "2011 Year-End Report on the Federal Judiciary."
Swatting away partisan calls for Thomas and Justice Elena Kagan to recuse themselves from the health care cases because of alleged bias, Roberts wrote that all the justices "are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process."
His defense frustrated critics, who had hoped for more than "trust me." Nor did his detractors take well to his implicit threat to deem unconstitutional any congressional attempt to impose ethics requirements on the justices.
Taken together, though, it may have been a signal to the government's executive and legislative branches on the health care cases: Leave us alone and I'll make sure we leave you alone.
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