Academic highlight: Clashing perspectives in the Harvard Law Review’s 2011 Supreme Court Issue
on Jan 2, 2013 at 2:32 pm
The Supreme Court’s 2011 Term captured the nation’s attention as almost never before. Decisions upholding the constitutionality of the Patient Protection and Affordable Care Act, analyzing the role of the states in regulating immigration, and reviewing state courts’ interpretation of its campaign finance decisions all made headlines and surprised even veteran Court watchers. Although it is too early to have gained historical perspective on these rulings, the Harvard Law Review’s 2011 Supreme Court Issue attempts to step back, take a deep breath, and ponder those hectic last few months in the spring of 2012.
As usual, the Supreme Court Issue features the nation’s leading constitutional law professors. Professor Pamela Karlan authored the Foreword, which summarizes the major themes of the Term, and Dean Martha Minow and Professors Gillian Metzger and Stephanos Bibas contributed comments on the Court’s major decisions. In addition, students authored twenty-one comments on leading cases. The issue concludes with statistics on the Term. The 2011 Supreme Court Issue thus provides valuable, one-stop shopping for those who want to keep up with the Court’s activities without reading the thousands of pages it produced last Term. But don’t expect this volume to provide easy answers about the meaning of last Term’s blockbuster decisions, because it turns out that the Review’s contributors fundamentally disagree with each other on just about everything.
In her Foreword, aptly titled “Democracy and Disdain,” Karlan comes out swinging. She concludes that the overarching theme of this past Term is the Court’s “disdain” for the political process. In Karlan’s view, the Court combines judicial supremacy with a narrow view of Congress’s enumerated powers, which creates a “serious danger that the Court will disable the government from addressing critical national problems.” She even reads Chief Justice Roberts’ opinion in NFIB v. Sebelius as consistent with her thesis. Although Roberts saved the statute, he did so by reading it as an exercise of the Taxing Power – a power that Congress did not intend to invoke. Karlan interprets this as equivalent to declaring that the “the fools couldn’t even figure out how to structure [the Act] to render it constitutional.” In short, Karlan concludes that the Chief Justice “conveyed disdain even as he upheld the Act.”
Reading Minow’s comment on the heels of Karlan’s Foreword risks intellectual whiplash. Minow writes that Chief Justice Roberts’s decision to cast the deciding vote in favor of upholding the Affordable Care Act showed “respect” for and “deference to” Congress as “the democratically accountable institution.” Furthermore, she believes that NFIB v. Sebelius elevated the Court above the political fray: “Seeing the decision as one of law, not just of politics, demonstrates the power of arguments and explanations rather than sheer outcomes or advantage,” which “amplify the Supreme Court as a symbol of the rule of law.” For Minow, the decision is respectful of the political process and the Court’s role in our system of government, and thus is worthy of our respect.
Metzger provides yet another perspective on the health care decision, writing that “it is hard not to see Chief Justice Roberts’s opinion in NFIB as a consummate act of institutional diplomacy.” In contrast to Minow, who concluded the decision would “not pleas[e] anyone,” Metzger writes that Roberts “offers something to everyone: liberals got the vast majority of the ACA upheld; conservatives got new limits on Congress’s regulatory and spending authority; states not only got the freedom to refuse to expand their Medicaid programs without risk of losing funds, but also kept the ability to expand (with generous federal subsidies) if they want to.” In Metzger’s view, Roberts is, above all, an advocate for the Court he leads. Although she acknowledges that the future is hard to foretell, she believes Roberts is likely to put the “legitimacy needs of the Court (and his legacy as Chief Justice) over his own ideological leanings.”
Karlan, Minow, and Metzger are three of the nation’s leading constitutional law scholars, and they are not far apart on the political spectrum, so one might expect them to share a similar perspective on the Court and its decisions. And yet they have diametrically opposed views on the most important Supreme Court case in decades. Their divergent views prove that we will be debating the significance of NFIB v. Sebelius for years to come.