Rule of Law

Reagan’s Court v. the Libertarians’

By Garrett Epps


In 1983, Chief Justice Warren Burger asked Congress to create a new national appeals court to resolve cases the Supreme Court was too busy to hear. At the Reagan White House, a cheeky 28-year-old Harvard Law graduate named John G. Roberts was horrified.


“The President we serve has long campaigned against government bureaucracy and the excessive role of the federal courts,” Roberts wrote to White House Counsel Fred Fielding. Burger’s proposal would create “an additional bureaucratic structure to permit the federal courts to do more than they already do.” Anyway, Roberts continued, the Supreme Court already made too many decisions. “There are practical limits on the capacity of the Justices, and those limits are a significant check preventing the Court from usurping even more of the prerogatives of the other branches. The generally-accepted notion that the Court can only hear roughly 150 cases each term gives the same sense of reassurance as the adjournment of the Court in July, when we know that the Constitution is safe for the summer.”


Earlier this summer, the Supreme Court adjourned after a term in which it decided only 78 cases. Roberts, now chief justice, departed for Prague, leaving an impression across the political spectrum that the Constitution may not be safe. A Pew Research Center poll, taken in March, found the Court’s public approval at an all-time low, though equal numbers of those polled considered the court “liberal” as “conservative.”


The confusion is not surprising. In 2012, Roberts cast the deciding vote to uphold President Barack Obama’s health-care legislation; in 2013, the Court—again by one vote, with Roberts this time in dissent—struck down the Defense of Marriage Act, boosting the ongoing campaign for marriage equality. For two years in a row, in other words, a marquee end-of-term “liberal” result has drawn the public’s attention away from the Roberts Court’s overall drive to the right.


Consider the Affordable Care Act (ACA) case, National Federation of Independent Business v. Sebelius. Observers wrote that Roberts’s vote had saved the act’s centerpiece individual mandate by voiding it as a commercial regulation but upholding it as a tax; in doing so, however, Roberts held that Congress can use the commerce power to regulate “activity” but not “inactivity.” Taxpayers who choose not to buy health insurance somehow remain “outside” commerce, even though their collective economic decision to impose their own health-care costs on others threatens to wreck both the federal budget and the national economy. In the same case, Roberts also mustered seven votes for a limit on Congress’s spending power. That power is the major tool Congress—every Congress, whether Democratic or Republican—uses to regulate the economy in areas ranging from health care to environmental protection and civil rights. It works because Congress can require states to take certain actions—educational reform, for example—as a condition of accepting federal funds. The new doctrine means that conservative states can refuse to implement the expansion of Medicaid to cover more of the uninsured while still demanding that Congress fund their existing Medicaid programs.


The “inactivity” doctrine and the spending-power limit are legal innovations. (Roberts’s opinion on these questions was short on logic and case law; instead, it relied on vaporous platitudes like “That is not the country the Framers of our Constitution envisioned.”) Before the decision, many scholars on the left and right would have called both arguments absurd. Conservative legal icons like Judges Laurence Silberman and Jeffrey Sutton had found the “individual mandate” easily constitutional; and not a single lower court—even those that voided the mandate—had seen merit in the spending-clause argument. But these invented limits on congressional power are now, improbably, the law. Depending on future appointments, they portend trouble for progressive legislation in the years to come.


In the term just ended, the decision in the Defense of Marriage Act case, United States v. Windsor, came just a few days after Shelby County v. Holder, one of the most reactionary decisions in American history. The 5-4 opinion in Shelby County carved out the heart of the Voting Rights Act of 1965, freeing local governments, regardless of their racist histories, to implement election-law changes without pre-approval from the Justice Department. Roberts wrote the opinion, and few doubt that he drove the result.


The Court said, in effect, that the civil-rights era is over. Minorities in the covered jurisdictions can now vote and hold office; problem solved. The requirement of advance clearance, Roberts wrote, thus has “no logical relation to the present day.” Not since the Gilded Age Court struck down the Civil Rights Act of 1875, declaring that blacks must cease “to be the special favorite of the laws,” has a Court majority shown such open contempt for both Congress and for minority rights. As the flood of vote suppression under way in its aftermath shows, Shelby County has done huge damage to the cause of racial equality.


“Judges are like umpires,” Roberts told the Senate Judiciary Committee in 2005. “Umpires don’t make the rules—they apply them.” In Shelby County, he and the Court majority did act like an umpire—like Tim McClelland, that is, who in the 1983 “pine tar” incident invoked an obscure and irrelevant rule to reverse a Kansas City Royals home run and tip the game to the Yankees. The league commissioner overturned McClelland’s decision; Roberts, alas, is the commissioner as well as the umpire in his league.


Marcia Coyle’s The Roberts Court: The Struggle for the Constitution is the indispensable first stop for readers, lawyers and lay alike, seeking to understand the making of this Court. Coyle, a correspondent for The National Law Journal, is widely respected for her evenhandedness and clarity. She interviewed a number of justices, as well as former clerks and current practitioners. Her book is built around four recent landmark 5–4 decisions—Parents Involved in Community Schools v. Seattle School District No. 1 (2007), which gutted the power of school boards to promote student-body diversity; District of Columbia v. Heller (2008), which announced a personal right to handgun possession; Citizens United v. Federal Election Commission (2010), which abolished restrictions on “independent expenditures” in federal campaigns by wealthy individuals, unions, and corporations; and National Federation of Independent Business v. Sebelius, the health-care case. These cases, Coyle writes, “reveal a confident conservative majority with a muscular sense of power, a notable disdain for Congress, and a willingness to act aggressively and in distinctly unconservative ways.”


For Coyle, the story of this Court is the emergence of Roberts as a self-assured and effectual leader. He can take the Court in a radical direction when he chooses—and rein it in when he does not. Though many people still regard Justice Anthony Kennedy, the supposed “swing justice,” as the defining force on the Court, she writes that “with the health care decision, the Kennedy Court faded into the background and the Roberts Court firmly emerged.”


Mark Tushnet, a professor at Harvard Law School and one of the nation’s top constitutional scholars, draws on his own experiences (including service as clerk to Justice Thurgood Marshall during the term in which Roe v. Wade was decided) to imagine the intellectual struggle inside the new Court. Roberts, Tushnet argues in his new book, In the Balance: Law and Politics on the Roberts Court, is less a politician in a robe than a conscientious lawyer whose basic beliefs were formed during the Reagan administration. Tushnet’s explanation for Roberts’s vote to uphold the mandate? There was no last-minute switch as posited by other observers. There was no “caving” to political pressure, no political calculation. Instead, the “opinion upholding the ACA on tax power grounds—and finding it outside Congress’s commerce power—expressed Roberts’s best judgment about what the law as he understood it required. He called it as he saw it: one ball and one strike.”


Tushnet’s thesis, if true, explains a lot. The arguments against the ACA—unlike those in the race, guns, and money cases—were novel. This much is clear from two detailed new accounts of the health-care litigation, one from the left and one from the right. In The Tough Luck Constitution and the Assault on Health Care Reform, Northwestern University scholar Andrew Koppelman points out that the legal arguments deployed against the mandate flowed not from constitutional text or precedent but from early, “Tough Luck Libertarian” ideas of the political philosopher Robert Nozick. Koppelman traces the evolution of this extreme school of thought into a contemporary belief, powerful among conservative lawyers and libertarian think tanks, that any governmental regulation, and really any taxation, is not just unwise but immoral. Koppelman captures the flavor by quoting “libertarian blogger Sasha Volokh, who has argued that it would be immoral to tax people to prevent an asteroid from destroying the earth.” This radical vision could be heard echoing in the health-care oral arguments when lawyer Michael Carvin, representing a small-business federation, solemnly assured the justices that even if a plague were guaranteed to kill half the nation’s people, the federal government could not require mass vaccination. Tough luck indeed.


Against these more recent arguments, the chief justice upheld the mandate as a tax because, as far as he could tell, it is a tax—and a tax is, in fact, what it is. Koppelman shares Tushnet’s conviction that Roberts “was conscientiously trying to do the best job he could.” That explanation does not satisfy Josh Blackman, a professor at South Texas College of Law. Blackman has written a deeply researched, highly readable account of the conservative challenge to the ACA, which, as a recent law graduate, he witnessed from the inside; Unprecedented: The Constitutional Challenge to Obamacare includes an introduction from its own hero, Georgetown law professor Randy Barnett. The intellectual godfather of the challenge, Barnett has been pleading the libertarian case to the Court for years (he argued and lost Gonzales v. Raich, in which he contended that Congress could not regulate personal possession of medical marijuana). His scholarship lays out a truly radical view of government and the Constitution. In The Tough Luck Constitution, Koppelman writes that Barnett “wants to privatize schools, prisons, courts, streets, parks, and the police.”


Barnett attained legal rock-star status by creating the “activity/inactivity” argument more or less out of thin air. (Koppelman calls him, in genuine admiration, “the most successful legal rhetorician since Catharine MacKinnon,” the creator of sexual-harassment law.) After the mandate was upheld, Barnett angrily dismissed Roberts’s opinion as “political, rather than legal.” Blackman writes acerbically, “Roberts rewrote the most controversial provision of the ACA,” affirming “a statute that Congress did not write.”


No one could suspect either Barnett or Blackman of crass partisanship—that is, of wanting the mandate struck down to boost the electoral chances of Mitt Romney, say, or to help Republicans retake Senate control. Both men are serious, committed scholars, and their anger arises out of principle: Roberts abdicated what they see as the proper role of a libertarian Court.


But what was “unprecedented” in Sebelius was not so much the mandate as the vision of the Constitution put forth by the “tough luck” crowd. Thus, as Tushnet suggests, it shouldn’t be surprising that it did not achieve total victory. To be sure, Roberts is thoroughly conservative. But his is the conservatism of the 1980s rather than the new, more aggressive version minted for the Age of Obama. Still counted among the right’s heroes in that decade was the 18th-century philosopher Edmund Burke, who did not believe in untrammeled “liberty.” To Burke, “the restraints on men, as well as their liberties, are to be reckoned among their rights.”


“John Roberts’s constitutional philosophy was shaped before and during the Reagan years,” Tushnet argues, “and there’s no reason to think that he’s a partisan hack whose views change as new leaders come to the fore in the party.” Still, the new tough-luck libertarian philosophy resonates in the Court. Witness Roberts’s use of the “inactivity” argument to void the mandate under the commerce power; witness the four votes to void the whole ACA. Even a swing justice like Anthony Kennedy—like the younger and stunningly rigid Samuel Alito—was willing to adopt the tough-luck argument in its entirety. As Simon Lazarus recently pointed out in The New Republic, radical libertarian ideas are gaining ground in amicus briefs and lower-court opinions and finding their way into the minds of the conservative bloc.


But it is Ronald Reagan’s ghost that haunts the chief justice’s chambers, much as Franklin Roosevelt’s haunted the chambers of Justices Hugo Black and Felix Frankfurter for decades after his death. Roosevelt and Reagan are the only two 20th-century presidents who consciously pursued a judicial revolution at the Court. Roosevelt’s legal philosophy was based on government as the agent of freedom, equality, and opportunity; Reagan famously declared that “government is the problem,” but he tempered his motto with a willingness to govern, to compromise with political adversaries, and to tax and spend when necessary.


Today’s conservative majority as a whole was forged in the Reagan era. Before Reagan put him on the high court, Anthony Kennedy was a political ally in Sacramento. Reagan named Antonin Scalia to both the appellate and Supreme benches. He lifted an obscure bureaucrat named Clarence Thomas to national status by making him head of the Equal Employment Opportunity Commission; Roberts was an assistant to Reagan’s first attorney general, William French Smith, and then to his White House counsel, Fred Fielding; and Samuel Alito came to Washington to join Reagan’s solicitor general’s office, then was an assistant to his hardest-line legal ideologist, Attorney General Edwin Meese. It is no coincidence these five form a bloc, or that Kennedy—the only one who is not a full-fledged child of the Reagan Revolution—should be the least rigid of the five.


Consider the priorities set by the Reagan Justice Department when it came to power in 1981: reversal of Roe v. Wade; a cutback on the establishment clause governing the separation of church and state; an end to affirmative action; an abortive attempt to restore tax-exempt status to segregated private schools; a fight—with Roberts, from his post in the attorney general’s office, providing the rationale—to keep Congress from strengthening the Voting Rights Act. Any law that “favored” minorities roused the ire of Reagan, Meese, and company—as they rouse the Court majority’s ire today.


That is true of Roberts in particular. When the issue is race, the chief comes—there is no polite way to say this—a bit unhinged. Coyle recalls shock in the courtroom when Roberts asked a lawyer for a local school district whether a program that occasionally used racial diversity as a tiebreaker wasn’t the moral equivalent of Southern segregation. (Meese once called affirmative action “a new version of the separate but equal doctrine.”) During argument in the latest affirmative-action case, Roberts turned red in the face at the very existence of check boxes for race on college applications (he seemed to think that applicants were required to use them). Hearing a case about the Indian Child Welfare Act, he suggested that some Native American tribes might in essence be fraudulent social clubs, open to posers “who think culturally” they are Indians and want “extraordinary rights.”


“The way to stop discrimination on the basis of race,” Roberts wrote in Seattle Schools, the 2007 desegregation opinion, “is to stop discriminating on the basis of race.” The words are Reaganism at its purest. In a major civil-rights speech in 1985, Reagan told the nation that advocates of what he called “quotas” had “turned our civil-rights laws on their head, claiming they mean exactly the opposite of what they say. … Our administration has worked to return the civil-rights laws to their original meaning—to prevent discrimination against any and all Americans.”


In fact, while Roberts was at the White House, conservatives led by Meese worked to rewrite Lyndon Johnson’s Executive Order 11246, which required federal contractors to create affirmative-action programs; the new version would have done away with the goals and timetables instituted under the order by the Nixon administration. Cooler heads in the Labor Department and on Capitol Hill convinced them that the fight would be too costly. But according to scholar Nicholas Laham, by early 1986 the White House had prepared a new executive order, policy memos, and talking points—as well as a speech for the president, never delivered, that said, in part, “Those who point us in the direction of equal rights and racial quotas talk about ‘discrimination in order to end discrimination.’ … It just doesn’t work that way. The only way to end discrimination is to end discrimination—once and for all, immediately.”


At the time, Roberts’s job included reviewing proposed executive orders, and the words read as if he wrote them. Or perhaps we should say that the Seattle Schools opinion, and the even more radical opinion in Shelby County v. Holder, read as if Reagan had written them. They adopt his underlying assumption that racism is a minor, forgotten blemish on America’s innocence. Civil-rights advocates are the real racists, hucksters in what Roberts in an earlier Voting Rights Act opinion once called “a sordid business, this divvying us up by race.”


Reagan was popular, but Reaganism never really was; too many citizens saw, and continue to see, government less as a problem than as a potential ally in areas from civil rights to health care. If “government is the problem” is to triumph, it will have to do so by judicial fiat. This may be the Roberts Court, but he seems determined to build the Reagan Court, a rear guard left behind to achieve from the bench what could not be won at the polls.


Of course, we cannot know the true meaning of the Roberts Court until we learn the names of the next one or two justices. If a Democratic nominee succeeds one of the older conservatives, Roberts and Reaganism will be on the run. Tushnet advances the thesis that the junior justice, Elena Kagan, is in fact Roberts’s most powerful antagonist on the Court. That may be a premature call; but Kagan could very well turn out to be the most brilliant mind named to the Court since Louis D. Brandeis. With one more vote, she could lead a powerful center-left bloc. On the other hand, if a Republican nominee replaces Justice Ruth Bader Ginsburg, Roberts may find himself swept into the tough-luck libertarian camp, with incalculable results for the future of American law.


For the near term, however, we have a Court with a 5–4 conservative majority. Even if the more radical vision does not triumph, we should be prepared for many more pine-tar moments (and much less calling of balls and strikes) in the years ahead. John Roberts seems prepared to lead his Court against the “problem” that is government—and indeed, the problem that is the voters.