Obama and the congressional advocates for Obamacare were quite deliberate and emphatic in arguing that the mandate was not a tax. One can understand why. Taxes are visible, taxes are out in the open, and taxes are readily subject to democratic accountability. If politicians want to raise taxes, voters can decide if they agree with that decision. But it is not the role of unelected judges to impose taxes upon a sovereign people from the bench.
Long after the Obamacare decision came down, multiple reports emerged from within the Court that, at a conference shortly after the Obamacare oral argument, Roberts had initially voted to strike down the individual mandate. I have no independent confirmation of that, but I also have no reason to doubt those widespread reports. The reports go that Roberts, after conference, changed his mind and so circulated an opinion ruling the opposite way from how he had voted in conference. I know John Roberts well. He’s a friend, and he was an incredibly talented Supreme Court advocate, but he also knew precisely what he was doing.
Here’s what I think happened. Roberts believed that striking down Obamacare would subject the Supreme Court to political criticism. He wanted to avoid that criticism. He wanted to shield the Court from being attacked in the course of a presidential campaign. As a clever lawyer, he thought carefully about a way to do so. He could write an opinion where virtually all of the holdings were principled, sound, and constitutional. With one little trick, transmogrifying the mandate into a tax, he could uphold the law and do, he believed, no lasting damage to the Court’s jurisprudence.
I suspect he viewed that decision as fulfilling a role, much like the role Chief Justice John Marshall played in Marbury v. Madison, where Marshall established the power of judicial review and for the first time struck down a statute enacted by Congress. He did so at a time when the Republic was new, when his political enemy Thomas Jefferson was in the White House and James Madison was secretary of state, and when the executive could easily have defied an order of the newly established Supreme Court.
Marshall was clever. He wanted to protect the legitimacy of the Court, and so Marbury was decided in such a manner (on jurisdictional grounds) that there was nothing Jefferson or Madison could do to defy the Court. I don’t think malice motivated Chief Justice Roberts in NFIB v. Sebelius. I think he was motivated by a genuine desire to protect the Court from political conflict. But that is not the job of a Supreme Court justice. As Roberts himself famously said at his own confirmation hearing, a judge’s job is like a baseball umpire: simply to call balls and strikes. With Obamacare, Chief Justice Roberts took off his umpire’s cap, picked up a bat, and swung hard at the pitch.
Had George W. Bush nominated Judge Luttig instead of Judge Roberts, I have complete confidence that five justices would have ruled according to the law and struck down Obamacare as unconstitutional. That would have presented a complicated political outcome for elected politicians, but it would have been an outcome consistent with the justices’ oaths of office.
The person I believe George W. Bush most wanted to nominate to the Court was Alberto Gonzalez. Gonzalez had been a corporate lawyer at a major Texas law firm, Vinson & Elkins, when then-Governor Bush appointed him to be his general counsel. He next appointed Gonzalez Texas secretary of state and then a Texas Supreme Court justice. When Bush became president, he made Gonzalez White House counsel and then U.S. attorney general.
If appointed, Gonzalez would have been the first Hispanic justice in history, a milestone that Bush would absolutely have loved to set. But national conservatives didn’t trust Gonzalez. They repeatedly made clear to Bush that they would have serious problems with his nomination; the phrase often repeated was, “Gonzalez is Spanish for Souter.”
When I was on his 2000 presidential campaign, I was the policy staffer advising Bush on the issue of judicial nominations. He told me then that his father had made two mistakes as president: promising not to raise taxes and appointing Souter. George W. didn’t want to repeat those mistakes.
So instead he nominated Harriet Miers, the successor to Gonzalez as White House counsel. Harriet is a talented lawyer and fiercely loyal to President Bush. But she had no record whatsoever as a judge and virtually no background or experience in constitutional law. And, according to the public reports, she did not perform well in her meetings with senators. As each day passed, conservative leaders began expressing more and more concern, and, remarkably, Bush decided to withdraw her nomination. When that happened, I sent her a quick email, telling her something to the effect of “Heidi and I know you’re hurting right now; we’re thinking of you and praying for you.” I figured, in the wake of her nomination’s being withdrawn, that she’d be pretty shell-shocked, but whenever she returned to her email it might give her some comfort. I was astonished when, just a couple minutes later, Harriet replied with something like “Thanks so much. I’m doing fine, just back at work!” It was a response that demonstrated grace and class and exceptionally strong character.
Both Gonzalez and Miers lacked any discernable proven record of defending conservative principles or paying a real price for doing so. And history teaches that, without such a record, the odds are overwhelming that they would not have become good justices. Maybe they’d have been David Souter, maybe they’d have been Sandra Day O’Connor, but there was no reason on earth to think they’d be Antonin Scalia.
And so, after a bumpy few weeks, the second justice that Bush appointed ended up being Sam Alito. Alito had been a judge on the U.S. Court of Appeals for the Third Circuit for many years. Prior to that, he had been in the
