But these days, the president must hope that grudges are put aside. He will need at least one Republican-appointed justice on the increasingly conservative court to uphold the signature domestic achievement of his presidency: health-care reform. The court’s four liberals, two appointed by Obama, are forecast as reliable votes in favor. But Obama needs at least five.
In six hours of oral argumentsover three days later this month — the most time the court has spent on a case in 45 years — the Obama administration will try to convince the justices that the Constitution grants Congress broad power to regulate interstate commerce and provide for the national interest. Broad enough to require that almost every American purchase health insurance or pay a penalty.
Roberts, who appears less dedicated to federalism than was his predecessor and mentor, William H. Rehnquist, may be “gettable” on such a question. Justice Anthony M. Kennedy, the usual go-to conservative for liberals, is a realistic possibility. Even Justice Antonin Scalia, the court’s most irascible conservative, might be lured aboard. Alito’s past votes make him more of a mystery.
The court’s liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — are solid on the question of Congress’s broad authority. On the other side, Justice Clarence Thomas has spent his 20 years on the court as a voice for the view that the Constitution mandates a far more limited role for the federal government.
“I think the rest are more or less perceived as being in play,” said Erwin Chemerinsky, the liberal dean of the University of California at Irvine Law School.
Walter Dellinger, a former acting solicitor general and one of the health-care law’s most ardent constitutional cheerleaders, has long predicted that the vote upholding the legislation will be lopsided and that Roberts will be in the majority to write the opinion. (When on the prevailing side, the chief justice writes the opinion or chooses the colleague who gets the job.)
“The reason I think Chief Justice Roberts will write the opinion is because I think he will want to write a narrow opinion,” Dellinger said. It would recognize that there are limits on Congress’s powers, he said, but that the Constitution’s commerce clause is fully met in a law that deals with the “intimately intertwined” issues of health care, insurance and interstate markets.