Brett Affrunti for The Washington Post
Roberts was not on the court for any of its commerce clause cases. But he may have provided a clue about his views on federal power in a 2010 decision in United States v. Comstock . In that case, he joined the liberal justices in ruling that sexually dangerous prisoners can be detained after their sentences end.
The decision was seen as an important endorsement of the view that Congress has the power to legislate on issues not specifically delegated to it in the Constitution.
Roberts assigned the case to Breyer and joined his broad opinion in full, while Kennedy and Alito agreed only with the outcome and not Breyer’s broad view of federal power. Scalia and Thomas dissented.
Despite all the attention on Roberts and Scalia, many think Kennedy is the most important conservative for the government to convince. Over the past five terms, he has been in the majority in more than 80 percent of the court’s 5 to 4 decisions, more than any other justice.
Chemerinsky jokes that if he were allowed to stretch the rules in offering a brief to the court on the case, “I would put Justice Kennedy’s photo on the cover.”
Shapiro, too, believes that it is essential for the government to get Kennedy on its side. “Atmospherically, I can’t see that if Kennedy votes to strike it down,” he said, that either Roberts or Scalia would come to the rescue.
Kennedy is mentioned frequently in the government’s brief, especially his concurring opinion in United States v. Lopez: “Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy.”
But that’s from a case in which the court ruled that a federal law exceeded the commerce clause’s authority.
Kennedy is also known as a defender of state sovereignty. “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power,” he wrote last year in Bond v. United States , which concerned federal prosecution in an area generally reserved to the states.
“When government acts in excess of its lawful powers, that liberty is at stake,” he wrote.
Similarly, Scalia’s position in Raich may have been an outlier that had more to do with drug laws than constitutional conscription. He joined Thomas last year when the justices declined to review a lower court’s decision on a federal law that bars violent felons from owning body armor, disagreeing with the denial and writing that it raised questions about the “court’s commitment to proper constitutional limits on Congress’ commerce power.”
And the Comstock decision about dangerous prisoners that Roberts joined spelled out a lengthy test for meeting constitutional muster that the health-care law’s challengers say it cannot meet.
The cases demonstrate the difficulty in applying the court’s past decisions to a law that critics repeatedly say is unprecedented. And while ideology is a powerful predictor of how the court will approach issues — the two pairs of justices most often in sync when voting are George W. Bush appointees Roberts and Alito and Obama nominees Sotomayor and Kagan — it does not control all outcomes.
“Lawyers look to precedents and say, ‘We win,’ ” said Lisa Blatt, a Washington lawyer who argues frequently before the justices. “The court looks at context.”
Verrilli seems to think he has found another way to make the conservative justices comfortable: the opinion of Judge Jeffrey Suttonof the U.S. Court of Appeals for the 6th Circuit, a former Scalia clerk and a conservative well-known to the justices. Sutton’s court was one of two appeals panels that have upheld the health-care law in the dozens of cases challenging it.
Sutton gently questions the wisdom of the law but concludes that it is within Congress’s powers to make such decisions.
This is exactly what the Obama administration would like the Supreme Court to find. And just in case the justices have somehow overlooked that a conservative judge has acceded to Congress’s power, Verrilli’s briefs to the court on the individual mandate are exceedingly helpful.
The government mentions Sutton 21 times.
Robert Barnes covers the Supreme Court for The Washington Post.
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