Legal Commentary

Predicting How the Mandate Might Fare at the Supreme Court: Explaining Chief Justice Roberts? Vote ? and Opinion Assignment ? in United States v. Comstock

By Orin Kerr

Legal debates over the constitutionality of the individtal mandate generally focus on three different questions: (1) As a matter of constitutional theory, how should a court rule based on a normative theory of interpretation; (2) As a matter of existing doctrine, how does the mandate fit (or not fit) into existing law, and (3) As a prediction, if the case reaches the Supreme Court, how might the Justices rule? I have a question about (3) for those who think the Supreme Court will or very well might strike down the mandate: How do you explain Chief Justice Roberts? vote and assignment in Comstock?

Let?s recall a little recent history. At the same time that the individual mandate was being enacted in Congress, the Supreme Court heard a very signifiicant case on the Necessary and Proper Clause, United States v. Comstock. The two overlapped: The Senate passed the individual mandate legislation on December 24, 2009, and oral argument in the Comstock case was two weeks later, on January 12, 2010. At oral argument, the United States made what I called at the time a ?shockingly broad? argument in favor of nearly limitless federal power. The House passed the mandate legislation March 21, and President Obama signed it into law on March 23. Seven weeks later, on May 17, the Supreme Court handed down its opinion in Comstock. The set of opinions in Comstock began with a 5-Justice majority opinion by Justice Breyer ? joined by Stevens, Ginsburg, Sotomayor, and Chief Justice Roberts ? that largely reflected the tremendously broad rationale offered by the United States at oral argument. It then added concurring opinions by Justices Kennedy and Alito agreeing as to the result in that case but offering narrower rationales, followed by a dissent from Justice Thomas joined by Justice Scalia.

Now let?s imagine what likely happened inside the Court during this time. The Justices would have met shortly after argument in Comstock to take a tentative vote. Given the 7?2 outcome, with Roberts in the majority, it seems extremely likely that Roberts voted with the majority at conference and assigned the opinion to Justice Breyer. That would have been in mid-to-late January. It probably took Justice Breyer around 2+ months to send around a draft majority opinion, so that would have been circulated shortly after Obama Care was enacted into law. The Justices were surely aware of the health care law that Congress had just enacted. And yet, soon after, Chief Justice Roberts became the 5th vote for the majority opinion in Comstock that takes an extremely broad view of federal power. Notably, without Roberts? vote, the controlling opinion would have shifted to a narrower rationale like Kennedy?s. But by joining the Breyer opinion, Roberts ensured that the opinion by Breyer ? who dissented in Lopez, and who seems to believe in no limits on federal power at all ? would become the law.

So here are my questions for those who think Roberts will vote to strike down the mandate: If Roberts will vote to strike down the mandate, why did he assign the Comstock opinion to Breyer (rather than Alito or Kennedy, as I predicted at the time)? And why did Roberts sign on to the extremely broad Breyer opinion to make that opinion the law shortly after ObamaCare was passed?

Anyway, obviously this is a reading-the-tea-leaves, inside-baseball sort of post, but I suppose that?s what happens when you?re trying to predict how the Supreme Court might rule in a case.

Full post as published by The Volokh Conspiracy on February 18, 2011 (boomark / email).