Teaching Constitutional Issues in the ACA Decision Part 1: A Look Behind the Curtain to Find some of Justice Kennedy's Words in an Unsigned Dissent

So now we know.  After years of debate, law suits filed all over the country, and dozens of federal opinions predicting how the Supreme Court would evaluate the terms of the Affordable Care Act the answer is that it was found Constitutional in its entirety.   I, along with every other health lawyer and professor in the country, have a lot to say about this opinion.  And my plan was to use this particular “first out of the gate” opportunity to post by discussing how we should be teaching it to our students.   It’s a wonderful teaching tool both in terms of Health Law and Constitutional Law.  If we needed any further examples that Constitutional Law is what the Supreme Court says it is, we have them now.    It also puts into perspective something law students often  find troubling: there can be many “right” answers to a question involving legal interpretation—and it’s not the lawyer who chooses among them, it’s the Judges.   But I have all summer to write about that.

What I’d like to comment on now is a different question—what happened to Justice Kennedy?  Sure, he has expressed his doubts in the past about the Commerce Clause but why couldn’t he be persuaded to join Justice Robert’s remarkable opinion which upheld the statute without giving Congress one inch of additional regulatory power?  We probably won’t have the whole story for many years.   But it’s possible to learn a lot about how to read a Supreme Court opinion, and how to read him in the future.    It’s actually remarkable how much Justice Kennedy was able to communicate, without having a single word attributed to him, and, in a bit of Supreme Court word archeology, see some strong evidence that although he signed the dissenting opinion, he may not have been completely comfortable with it.

Here's the argument:

As we all now know, ACA was found Constitutional because it had, in the opinion of five of the Justices,  enough in common with a “tax” to benefit from the deference the Court grants Congress in exercising its Spending Power.  

If that wasn't enough of a surprise, we also know that the opinion was written by Chief Justice Roberts--not Justice Kennedy who was thought to be the most likely to swing his vote towards the four Justices already quite likely to find a way to uphold it.  

Anyone reading the opinion knows that's not what happened.    But what those of us who teach others how to interpret Supreme Court decisions will be pointing out this fall, is how strongly he chose to express his view by not writing any words of his own and perhaps how unlikely it is to count on him as a “swing vote” in cases involving Congressional power in the future.  

Within the conventions of opinion authorship, Justice Kennedy had, of course, the option of signing onto the majority opinion and thus accepting the tax argument Justice Roberts offered him without endorsing any extension of the commerce clause.   He also could have done this and issued a concurrence or even a partial dissent which would further emphasize his rejection of the Commerce Clause arguments, and perhaps express his concern over the Medicaid expansion as well.    

 But not only did he decline to accept any part of Chief Justice Robert’s compromise argument--he joined an unsigned dissent without offering any additional words of his own.  A signed dissent could have expressed  his  respect for his fellow Justices who voted differently or for Congress or might even have provide a road map of where he parted company with the majority which would have been helpful to predict his vote in future cases. But he didn't.  His joining of the group dissent communicates his complete agreement with both its conclusions and its reasoning.  

 But what proof do we had that it was a struggle?  Why would we think that Chief Justice Roberts crafted his opinion with the goal of making it as acceptable as possible to Justice Kennedy  or even, as some rumors, so unsubstantiated as not to deserve a hyperlink, suggest, that Justice Kennedy initially agreed to uphold the Act and then changed his vote? 

Well one thing we can be fairly certain about is that Justices Scalia, Thomas and Alito were never persuadable.  It wouldn’t matter how the opinion was crafted or on what narrow grounds it was upheld, they were not going to find ACA Constitutional.   And we can also be certain that upholding the act by transmuting a penalty into a tax wasn't necessary to obtain the votes of Justices Breyer, Sotomayor and Kagan.   They would have gone much further (although it's going to be a few weeks before I fully untangle and can lucidly teach the multiple partial concurrences).  

So it's reasonable to suspect that the lengths to which Chief Justice Roberts went in finding that the mandate was actually a “tax” were driven by his efforts to bring in Justice Kennedy.  One reason for thinking this is it seems unlikely that he would have come up with those arguments had he only been expressing his own views.  Because they are very strange.    Indeed, Justice Ginsburg in her dissent describes his theory as to why the Commerce Clause did not apply a “novel constraint on Congress’ commerce power [that] gains no force from our precedent and for that reason alone warrants disapprobation.” (slip op. at 18).  That’s her way of saying it came from nowhere and is absolutely nuts. 

Obviously the efforts at compromise didn't work.  Justice Kennedy wouldn't sign on to any part of the majority's opinion.   But I suggest that there are some clues in the dissent showing that Justice Kennedy had some hand in writing it and that he wanted to show respect to the Justices whose arguments he rejected.  

Where's the evidence?  After all,  the dissent is unsigned and  we can be pretty sure that Justice Scalia was the author.  First, given that Justice Scalia is the senior justice among the dissenters, it was his option to either write it or assign it someone else.   Second, it is in his very distinct voice.   These words are so hot that they threaten to self-combust.   For example, the  dissent points to the mandate’s location in the act as the argument’s “nail in the coffin” (slip op. at 24).   It concludes its criticism of upholding the mandate as a tax by stating, “one would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression” (slip op. at 25-26).  That's pure Justice Scalia.

But how do we see Justice Kennedy in this?  Interestingly because of the opinion’s word choices.   Most notably, Section C of the dissent opens with the words, “[a] few respectful responses to Justice Ginsburg’s dissent on the issue of the Mandate are in order” (slip op. at 13).   They might have been written in neon they were so strikingly out of place.  Who wrote that?  Not Justice Scalia.

 It's been a long time since I was a Wellesley College English major, but some things never leave you.  I was intrigued to see such a change in tone and word usage and wondered if I could do some amateur sleuthing of the kind people use to "prove" who wrote Shakespeare's plays. 

A quick search on Westlaw brought some answers-- Justice Kennedy has used these words in introducing at least three dissents in the last three years.  In  U.S. v. Home Concrete & Supply, LLC, 132 S.Ct. 1836, 1849 ( 2012) (“this respectful dissent, now follows”),  Camreta v. Greene, 131 S.Ct. 2020, 2036 (2011) (“my concern with the rule adopted for this case calls for this respectful dissent”), and Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S.Ct. 1605, 1629 (2010)( I submit this respectful dissent).  And although it doesn't seem like it would be an unusual phrase, as far as I could tell (and no doubt if I'm wrong I'll hear about it and let you know) the other dissenters, again as far as I can tell so far,  don't express themselves in those words.  Also, the use of this phrase over three years mitigates against it being a law clerk's verbal tick as does the extreme unlikeliness that a Justice of the Supreme Court would not notice the first words of his own dissenting opinion.

  
What do we get from this?   I think some insight into how this opinion came about and why, indeed, the majority’s opinion was based on what the ABA’s Journal has described as a “third back-up argument” which, if we are honest with ourselves, makes absolutely no sense. 

There's still a lot we don't know.  So maybe Justice Kennedy was persuadable.  Justice Roberts tried hard to draft an opinion he could sign, but in the end negotiations broke down and he went with the dissenters.   This leaves a mystery--if Justice Kennedy was ever "almost there" why didn't he write his own dissent explaining his reasoning?  We don't know.   Surely he didn't run out of time?  Justice Thomas had time to add a page or two reminding us that although he agreed that the Commerce Clause was inapplicable, he still felt that it was a mistake to use the "substantial effects' test for any purpose (slip op. at 2).    

And what significance is there to see traces of Justice Kennedy's editing in Justice Scalia's opinion?  Of course we don't know that either.  But one interpretation is that Justice Kennedy would not countenance disrespect for Justice Ginsburg.   Perhaps, even,  we are seeing signs that he is uncomfortable  with Justice Scalia's increasing personal attacks on those who disagree with him and excised whatever lambent language was originally used to describe Justice Ginsburg's dissent.

Or how about this---if Justice Roberts' decision to find a way to uphold the act is a way of  is distancing himself from what is starting to look like the highly politicized voting block of Justices Scalia, Thomas, and Alito then maybe Justice Kennedy's editing shows he's not all that comfortable with them either.  Who knows?

   Is this something that those who care deeply about the result of the case—that ACA  is now the law of the land and free from any judicial restraint—are interested in?  Probably not.  But for those of us whose vocation it is to teach aspiring lawyers how to predict the result of future Supreme Court cases based on a close reading of past ones, it is one of the many things which is going to make National Federation of Independent Business v. Sebelius (No. 11-393, June 28, 2012) a classic teaching tool for a very long time.

[JSB]

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