The Umpire Strikes Back
California Lawyer

The Umpire Strikes Back

by Douglas W. Kmiec

September 2012

When I started this essay in mid-June, the nation was waiting to see if, in the words of the inestimably cynical observer Mr. Dooley, the U.S. Supreme Court would "follow the election returns." Many pundits, it is fair to say, having witnessed the Rehnquist Court arguably run the clock on the recount in Bush v. Gore (531 U.S. 98 (2000)), were hardly hanging by a chad to learn whether law or politics would resolve the challenge to President Obama's health care reform.

Speculation over the interrelationship between law and politics has been with us since the founding. The "great Chief Justice," as John Marshall is often described, was said to have strained the meaning of the Judiciary Act of 1789 in order to nominally award a judgeship to a Federalist crony while strengthening the Court's role as a constitutional interpreter. (Marbury v. Madison, 5 U.S. 137 (1803).)

In "Obamacare," Chief Justice John Roberts gave us Marbury II. The oral argument and commentary focused almost entirely on the scope of Congress's commerce power. Staying true to his Republican provenance, just as Marshall hugged his Federalist association, Roberts won the cheers of his conservative pals off the bench for separately acknowledging its limits. The conservative applause, along with some polite clapping from Justices Elena Kagan and Ruth Bader Ginsburg, got louder when Roberts put teeth into the coercion limit on the spending power. What exactly is that limit? It would seem to apply not only to the quantity of monies offered to states, but also when Congress proposes to take away new and old money when a state refuses to assume new burdens.

The Marshall/Roberts comparison takes on real life, however, when Roberts switches sides to affirm the validity of the health care statute based on the legislative power to tax for the general welfare. Roberts here is giving deference to Congress and a democratically chosen outcome, making it far less likely the Court will figure prominently in the November election. (See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566 (2012).)

Health care, and Roberts's clever handling of it, dominated the last term of the Court. Beyond that was mostly a grab bag of statutory interpretation cases, except for an interesting religious claim and Arizonans who could get no immigration satisfaction. Of some interest was a small amount of conservative flirtation with what used to be called Lochnerism - the elevated protection of property and economic interests under the due process and equal protection clauses. Historically, the right wing had been giving up on this fascination just as the left wing was picking it up in social and cultural matters, like abortion, same-sex marriage, etc.

In Armour v. City of Indianapolis (132 S.Ct. 2073 (2012)), the flirtatiousness merited a conservative three-justice dissent authored by Roberts when Indianapolis disregarded a statutory obligation to treat similar property in the same manner under its assessment practice. The city started out treating its citizens equally, allowing all property owners a choice between paying a sewer fee either in a lump sum or in installments with interest. However, it ended up with a grossly unequal method when it switched over to a lower flat fee, spreading the rest of the cost over the bond market. Those good citizens who paid up front laid out 30 times more than those who paid by installment and then were excused from any further payments after the flat fee. Why not refund the lump-sum overpayment? "Administrative inconvenience," Justice Stephen Breyer wrote for the six-person majority. (132 S.Ct. at 2081.)

Harrumph, came the chief justice's response, recognizing along with fellow Justices Samuel Alito and Antonin Scalia that the chief's one-time Hoosier homeland was just being lazy; noncompliance with the state's equality principle needed something more than that, even without the presence of a suspect class or fundamental right. Yes, states and localities have great leeway in apportioning taxes, but having committed to equality, said the chief, "The Equal Protection Clause does not provide that no state shall 'deny to any person within its jurisdiction the equal protection of the laws, unless it's too much of a bother.' " (132 S.Ct. at 2086.) His pithy words are destined in years ahead for thousands of briefs seeking to cabin "municipal discretion."

In Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (132 S.Ct. 694 (2012)), a teacher in a religious school was fired after being diagnosed with narcolepsy. She sued under the Americans with Disabilities Act. The Court, speaking through the chief justice, held that the "ministerial exception" - grafted onto civil rights statutes (and based on the free exercise protection of the First Amendment) - permits religious institutions to make decisions on religious personnel without the interference of federal law. A ministerial free-to-discriminate trump card announced in Hosanna-Tabor is, to say the least, in some tension with prior law when considered holistically. After all, way back in the Burger Court, Bob Jones University was told that religion does not exempt it from compliance with racial nondiscrimination principles for an IRS tax exemption and benefit (Bob Jones Univ. v. United States, 461 U.S. 574 (1983)), and the Court has been grudging in giving latitude for special accommodations of religion, lest it rub up against the establishment clause. (Locke v. Davey, 540 U.S. 712 (2004).)

Unlike health care's conflicting opinions, the justices sang Hosanna in unison, largely deferring to whomever a church considers a minister and whether their fulfillment of faith-based duties would justify termination (even when other nonministerial personnel do similar or identical things, and the dismissal of those nonministerial folk would violate civil rights laws). Justices Clarence Thomas, Alito, and Kagan concurred in two separate opinions that seem even more deferential to the religious interests at stake. (132 S.Ct. at 710-716.)

In immigration matters, there was Arizona's attempt to lend a hand to the federal government's enforcement efforts by enacting parallel state crimes - an approach that was largely rejected, as the Court concluded that the federal government had occupied the field. All was not lost for the Grand Canyon State: The Court noted that it's OK for Arizona to verify a person's immigration status during a stop, detention, or arrest; the Court said racial profiling would not be tolerated - except, of course, in the real world. (Arizona v. United States, 132 S.Ct. 2492 (2012).)

Details? Sorry, the editors tell me I'm out of space, so ... OK, OK, here's the skinny: Justice Anthony Kennedy, who usually plays Hamlet, decided instead to play Claudius, Hamlet's uncle who, you may recall, by a series of events involving plots and poison pretty much kills off the entire cast. Kennedy is not that nefarious, but by an equally devastating sweep he could have declared health reform DOA in its entirety. The poison: efforts to regulate inactivity (the nonpurchase of insurance).

Like Captain America in The Avengers, Chief Justice Roberts sides with health reform not because he is for it, necessarily, but because the Constitution gives Congress the power to tax for the general welfare. The fact that politicians run from anything labeled a tax doesn't mean that a revenue-raising device situated in the tax code isn't, well - just between us - a tax. Roberts proclaims it his legal duty to uphold the democratic process, prompting the progressive side to pinch itself, click its heels three times, and sing, "Hosanna" ... sorry, already did that. 

Those on the conservative side are quick to take personal offense. The indictment is not just that Obamacare stands, but that Roberts had the audacity to change his mind. Open-minded appointees who can be persuaded by brief and argument sometimes do that.

Call him Chief, call him Ump, John Roberts calls 'em as the law sees 'em. On this day the cynical Mr. Dooley was proven wrong - for if a future President Romney wins a repeal of the health care act, Roberts will uphold that too. Ah, democracy.

U.S. Ambassador (ret.) Douglas W. Kmiec holds the Caruso Family Chair in Constitutional Law & Human Rights at Pepperdine University.

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