There was more. As part of the decision, Roberts persuaded six justices, including liberals Stephen Breyer and Elena Kagan, to place a cap on Congress’s spending powers, ruling that the government could not use the threat of holding back federal funds to force states into going along with programs like the health care law’s significant expansion of Medicaid.
“It’s the first time in history a Court has found a spending condition to be coercive,” says John Elwood, a Washington litigator and an expert on the Constitution’s spending clause. “That’s big news.”
Many legal experts say that the Medicaid portion of the opinion will prove to be the decision’s greatest legacy. Elwood believes that it could ultimately be used to attack federal education or highway-spending programs. Others think that the opinion has rendered the Clean Air Act vulnerable.
The massive health care challenge—and the near victory—has spilled blood into the water. Michael Greve, a libertarian scholar at the American Enterprise Institute, says that in the past few years, lawyers like him have found an increasing number of allies determined to shake the anti-Washington tree. “I think the movement—it has changed quite substantially,” Greve says. “There are a lot more players. There’s a lot more money from new and different sources sloshing around. And there’s a lot more energy to it.”
This month, a Texas bank backed by the Competitive Enterprise Institute and 60 Plus, a conservative nonprofit that advocates, among other things, partially privatizing Social Security, sued the Treasury Department, arguing that the Dodd-Frank Act that slapped new controls on the financial-services industry is unconstitutional. Their argument is not based on the commerce clause but on the principle of separation of powers; in essence, they say that the act’s Consumer Financial Protection Bureau is unaccountable to either the executive branch or Congress. But there’s no doubt that the current environment has emboldened plaintiffs. They believe that if their case reaches the high court, the chief justice will be on their side.
“Before the Obamacare decision, I would have looked at Justice Roberts,” says Sam Kazman, CEI’s president. “I still look to him on this issue as being a good prospect for advancing the law.”
For some (but certainly not all) conservatives, the long-range goal is to return to an America that existed before Franklin Roosevelt’s New Deal, when the high court protected business against the impingement of federal regulation. Back then, the justices looked to the Constitution to guarantee “economic liberty” and the protection of private property. In a long-infamous 1905 decision, Lochner v. New York, the Court struck down workplace-safety regulations as infringing on a “right to contract.” A conservative-leaning Court would go on to invalidate many of Roosevelt’s Depression-era programs until the balance of power on the bench shifted in 1937.
Although it might sound fanciful, a judge on D.C.’s influential U.S. Court of Appeals reached back to Lochner earlier this year while dissenting in a case centered on the federal regulation of milk.
“America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s,” wrote Judge Janice Rogers Brown. “First, the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote public welfare. Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the ‘democratic process.’ ”
Brown, whom George W. Bush appointed to the Appellate Court, could conceivably be on Mitt Romney’s short list for the high court.
“We would have laughed about that last year or the year before—the idea that Lochner is walking the streets again,” says the American Constitution Society’s Fredrickson. “I think conservatives have been emboldened, and they are talking about that—that doctrine of property rights trumping all. The implications of that are extraordinary.”
THE LONG VIEW
Should CEI’s Dodd-Frank challenge reach the justices, it will find a Court as polarized as the legislature that sits across First Street NE. The nine-member body has always been an amalgam of jurists from across the political and philosophical spectrum, but the steady churn in Washington politics has produced a Court that, for the first time in modern history, is cleaved into distinct, warring camps. Republican presidents appointed Roberts and the four conservatives; Democrats selected Ginsburg and her three liberal allies. The judicial vetting process produces fewer and fewer wild cards; fewer fence-straddlers; fewer Byron Whites, Lewis Powells, O’Connors, and Kennedys. As a result, the score on difficult cases, time and again, is 5-4, 5-4, 5-4.