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The Health Care Law And The Roberts Court


This is TALK OF THE NATION. I'm Neal Conan in Washington. It's always dangerous to bet on how the Supreme Court will rule, but here in Washington, many legal analysts predict the court will issue a 5-4 ruling to strike down at least parts of President Obama's health care law sometime in the next few weeks.

In a hotly debated piece in The New Republic, Jeffrey Rosen declared that a 5-4 decision would represent irredeemable failure for the Roberts court and would mark it as divisive and emblematic of a new conservative activism.

Analyst Carrie Severino describes that as a dramatic overstatement and part of an effort to undermine the ruling even before it comes out. Both will join us in a couple of minutes. We'd like to hear from lawyers and law students: What's the value of consensus on the court? Our phone number, 800-989-8255. Email talk@npr.org. You can also join the conversation on our website. Go to npr.org. Click on TALK OF THE NATION.

Later in the program, country music star Chely Wright on a new film that documents her decision to come out of the closet. But first David Savage joins us here in Studio 3A, he of course the Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. Always nice to have you on the program, David.

DAVID SAVAGE: Good to be here, Neal.

CONAN: And before we go on to the Roberts court and the health care ruling or what could be the health care ruling, we've been buffeted by any number of important cases that are coming up before the court: The immigration decision is also expected in the next few weeks. And now there's a First Circuit Court ruling today in Boston that struck down the Defense of Marriage Act as unconstitutional.

SAVAGE: Yes, the court struck down the part of the law that denies federal benefits to legally married same-sex couples. This is a big deal, but it's not the issue about the right to marry. The court said we're only dealing with persons who are legally married, something like 100,000 couples around the country, married in states like Boston. And the question...

CONAN: Massachusetts, yes.

SAVAGE: In Boston, yes, in Massachusetts and five other states. And the question in this lawsuit that's been pending for a couple years was: Could those couples, for example, file a joint federal return? Or if one of them died, could they get survivors' benefits? This is the issue, you may remember, the Obama administration sort of flipped on a couple years ago.

They started out defending the law, and then President Obama and Eric Holder, the attorney general, said: We can't justify federal discrimination against couples who are legally married under state law. And that's what this - the court ruled today. It said equal treatment is the rule for federal benefits for same-sex couples.

But this issue is not the one that decides the much bigger question about is there a right to marry in all the states.

CONAN: There's also another part of the Defense of Marriage Act, which says if homosexual couples are married in one state, other states are not required to recognize that.

SAVAGE: Yes, and that was actually not part of this litigation. That's still sort of out there. So the assumption is this is going to be appealed to the Supreme Court in the fall. The justices will take the case. They've almost got to. It's a challenge to a federal law. And then later on, maybe from California or one of the other states, we're going to get the second question, is there is a constitutional right to marry.

CONAN: All right, we'll look forward to that next fall when that comes up before the Supreme Court. But in the meantime, getting back to this controversy over the pending health care decision, and again that's expected in the next few months, remind us how we arrived at - there's heavy betting here in Washington, it's going to be a 5-4 decision to strike down at least part of the law, particularly the mandate.

And remind us of the arguments that were before the court earlier this year in those historic days of arguments.

SAVAGE: Yes, three days of arguments in March, and the issue was: Does the mandate - is this a regulation of commerce, or is it something different? Does it force people to engage in commerce? When this case was coming up, a lot of people in the legal business thought this would be easy for the court to uphold because since the New Deal, they've basically said the Congress has very broad power to regulate anything that's economic or commercial, and certainly health care is a matter of economics.

But there was a real challenge, a very strong challenge, saying: Now wait a minute, a mandate is different. You - there's never been a federal law like this that requires somebody to buy a product. So that was the issue: Is the mandate a reasonable regulation of commerce, or is it something new and unconstitutional?

And as you suggested, Neal, the arguments sure suggested that the five more conservative justices thought that it was something new, different, highly skeptical questions. So that led to the view that there's going to be a five-to-four ruling, to at least strike down the mandate.

CONAN: Skeptical questions: Would this require us to - could we mandate that you eat broccoli?

SAVAGE: Absolutely right, all kinds of - the conservatives kept saying wait a minute, if the government can do this, what can't it do? Can it mandate all other kind of useful products? And so that's - they were looking for a limit, and it didn't sound like they were satisfied that they had heard one.

CONAN: All right, we're going to ask you to stay with us, David, and we're going to now enter the argument. Jeffrey Rosen is the legal affairs editor for The New Republic. His piece, "Second Opinions," ran on May 4th and, well, triggered a bit of an argument. He joins us here in Studio 3A. Jeffrey, nice to have you back on the program.

JEFFREY ROSEN: Great to be here.

CONAN: And why is this decision, as you put it, a decisive point for, a moment of truth for John Roberts, the chief justice?

ROSEN: I have to say I'm amused by the flap over this article, because in my view it was just stating the obvious. Essentially Roberts came into office telling me and other journalists that he would make it his goal as chief justice to promote consensus and avoid five-to-four decisions. He said it was bad for the court and bad for the country in a polarized time, for the court to divide along ideological lines.

He thought it was a special opportunity in a polarized age for the court to rise above politics. But he recognized the difficulty of his task. He said that it was sobering to think that many of his predecessors were failures as chief in trying to promote consensus, that his success would depend on the willingness of his colleagues to support his vision.

And he said in the end, unanimity is worth trying, and maybe it's worth trying for a while. If it becomes hopeless, you can go back and view that not as a major effort, and we'll go back to having five-to-four opinions. All right, I was very impressed by Roberts in this interview. I was struck by the sincerity of his desire to achieve consensus.

It's obvious that he's had only mixed success only the past six years, presiding over a court that struck down campaign finance reform and affirmative action by five-to-four votes. And in this article, I was just descriptively saying, if Roberts presides over a court that also strikes down health care by a five-to-four vote, I would think that everyone, including he, would acknowledge that his goal of promoting consensus had been a failure.

So I wasn't trying to influence the court in any way. The court has already made its decision, by the time my piece came out. It was just a notion that those of us who have been hoping against hope that Roberts actually will achieve some of the unanimity he sought, are looking at this decision very avidly, and to that degree, it represents a moment of truth for him.

CONAN: Just to note, the justices, as their wont is to vote shortly after the oral arguments, and then they write their decisions and talk amongst themselves. The decision comes out later, but they make their vote. That's done back in March.

ROSEN: Absolutely. Soon after the oral arguments, the justices voted. It's quite rare for them to reverse themselves. So the working assumption is that the decision is already made, they're working out the details. We'll learn about it in June, but any attempts to influence the court would have had to come before the oral argument, because the decision is already made.

CONAN: And David Savage, let me ask you to remind us: We think of the great Brown versus Board of Education decision, which seemed to gain weight by the fact that it was unanimous. And then you think of another decision, Roe v. Wade, which has spawned considerable division, five-to-four.

SAVAGE: Well, that's right, and there's been a lot more five-to-fours than nine-O. Earl Warren at that time knew that they were going to make a major change, sort of changing the lifestyle in a major region of the South, and that the only way to get that decision accepted was to have everybody sign off on it. So it was a momentous decision and a unanimous decision.

That happens sometimes. The Nixon tapes case was a unanimous decision. I thought the court at that time thought it was very important to say to the president: You've got to turn over these tapes, and it's got to be unanimous. But the truth is the court is like the political system here in Washington, very strongly divided views around the country.

Republicans have one view of a lot of things; Democrats have another. The court has now - seems like it's increasingly divided along those lines. They have fundamentally different views on things like affirmative action, abortion; and this may be another one where there's just a fundamental split among the liberal and conservative wings.

CONAN: Carrie Severino is chief counsel and policy director for the Judicial Crisis Network. Her piece, "Chief Justice Roberts' Moment of Truth," ran in the National Review Online May 21, a direct response to Jeffrey Rosen. She's also with us here in Studio 3A. Welcome to TALK OF THE NATION.

CARRIE SEVERINO: Thanks for having me.

CONAN: And dramatic overstatement?

SEVERINO: I think absolutely. If you look at the numbers, in fact the chief justice has been very successful, even by Mr. Rosen's own analysis, in achieving unanimity in the face of all of the difficulties that he pointed out. He only has one vote. He has to try to work with his colleagues as a diplomat in many ways.

And in 2007, Jeff Rosen himself gave a lot of praise to the chief justice for having achieved a greater degree of unanimity and a lower number of 5-4 decisions than there were in earlier history. That year, there were about 20 percent of the cases decided 5-4. This year, so far, 14 percent have been decided 5-4. So if anything, it's gone down.

In the last few years, it has gone - it went up in 2008 to 30, but it went down again to 18 to 20 percent. So we've been about at the same place in terms of the number of 5-4 decisions, which again Jeff Rosen described as an achievement, and I think is.

In terms of nine-zero decisions, we've also moved, I think, in the right direction in terms of trying to get justices on the same page. In 2007, about 30 percent of those cases were unanimous. In the last three years, it's hovered around 45 percent. So I think that's a great success, including two potentially very divisive cases this term: Hosanna-Tabor, which dealt with First Amendment freedom of religion issues; and the Sackett versus EPA case. And so those were both nine-zero.

CONAN: And so if those are positives, if those are good things, why wouldn't a more unanimous or more consensus-driven vote in this case - and again we're expecting 5-4, you don't know, but we're expecting 5-4 - why isn't that's important? This is a huge case?

SEVERINO: Well, I think the goal of having unanimous decisions is - it's nice to have unanimous decisions because it gives very clear guidance. Hopefully, you don't have it questioned as much over whether the decision will endure or be chipped away at by future courts. But I don't think it's a decision that should trump coming to the right legal result for the right - through correct legal analysis.

And it could, perhaps by doing a narrower decision or trying to find an analysis that everyone can agree on, you might be able to get there, but I certainly don't think that we should be pursuing that as a goal in and of itself. Really, we should be hoping that judges and justices are faithfully applying the law first.

CONAN: And Jeffrey Rosen, isn't it predictable that whichever side comes out on the short end of this particular stick is going to say wait a minute, this isn't over?

ROSEN: Oh yes indeed. If it's 5-4, both - the losing side will cry foul. But the point is, certainly Carrie and I are not disagreeing. In fact, I'm surprised to see her see the - suggest the article is overstatement if she's just citing the same statistics that I've been citing for the past six years, which indicate that Roberts has indeed had mixed success in promoting five-to-four decisions.

But Roberts himself, in our interview was focused not only on the numbers, but the fact that people would perceive the court to be divisive if in the highest profile cases it was 5-4, and that's why I think he would agree that this case is a moment of truth for his vision.

CONAN: We're talking about politics, recurring complaints of judicial activism and the value of consensus on the Supreme Court. Many, as you can imagine, disagree with Jeffrey Rosen's arguments. You just heard Carrie Severino do some of that. We're going to continue the discussion, and David Savage, of course, is with us, as well. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.


CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. As we continue to wait on the Supreme Court's decisions on several deeply divisive issues this term, especially President Obama's health care law, we're talking today about a growing debate over Jeffrey Rosen's argument that a likely 5-4 split would represent a failure for the Roberts court and his warning of the potential for conservative judicial activism.

As we've heard, he's gotten a good deal of pushback. We'd like to hear from lawyers and law students. What's the value of consensus on the court? 800-989-8255. You can also reach us by email, that address talk@npr.org. You can add your comments at Facebook as well. Go to facebook.com/nprtalk.

Our guests, David Savage, Supreme Court correspondent for the Los Angeles Times and Chicago Tribune; Jeffrey Rosen, legal affairs editor for The New Republic, professor of law at George Washington University; and Carrie Severino, chief counsel and policy director at the Judicial Crisis Network.

And Jeffrey Rosen, just a question: 5-4 either way would be divisive?

ROSEN: Absolutely, and it would be divisive, and it would be a failure for Roberts' stated vision of avoiding 5-4 decisions. I have to stress this again. I didn't say that 5-4 decision would be a failure for the Roberts court. I said to the degree that Chief Justice Roberts came into office saying he wanted to avoid 5-4 decisions, then a 5-4 decision either way would be a repudiation of that vision.

And I want to stress again why Roberts thought that this would be damaging. He said: I think it's bad long-term if people identify the rule of law with how individual justices vote. And he said he was troubled to see the statistics in the newspapers about how this was - Kennedy went this way, and Roberts went this way, and basically personalizing the law.

He said that people couldn't respect the law as a neutral institution unless the court could put its own interests above the ideological agendas of individual justices, and he would make it his mission, in a way that his predecessors had not, to try to persuade the court to speak with one voice, as Chief Justice Marshall did.

And he even noted that Marshall could have come into office and tried to pursue the federalist agenda now that the federalists were out of the White House and Congress but that Marshall thought it was more important to tend to the interest of the court than his ideological agenda.

So I have to say once more this is purely a descriptive argument. Roberts said he wanted to do one thing, and if the health care case divides, then - either way, I think you'd have to say that he was not able to achieve it. And then I think it's more interesting to talk about why did he fail. Was he overly ambitious, the way President Obama did, in thinking he could come to Washington being a uniter and not a divider, and did he find that the liberals, as well as the conservatives, were more intractably attached to their ideologies than he expected?

Was he less willing to compromise than he'd imagined? Was he overconfident in his persuasive abilities? There's plenty of time to talk about all that if the case divides. Right now I'm just noting how striking it was that he came into office wanting to do one thing and now has to decide whether he wants to actually achieve that.

CONAN: Carrie Severino?

SEVERINO: Jeff, I don't see how this represents a failure for him at all. In 2007, you said he succeeded in doing precisely what he promised to do when he had 30 percent of the cases 5-4 decision. This term there's 14 percent in 5-4 decisions. He's actually done that.

To say if there - he's failed if any decisions remain 5-4, I think that's asking far too much, and I don't think that's what Chief Justice Roberts thought he was going to be able to achieve. No one can do that. You know, if you really want a nonpartisan, a non-split decision on this, on this case, you should equally be talking to Justice Kagan. You should be talking to Justice Sotomayor, Ginsburg and Breyer, who are likely, if as we are all, you know, guessing, the court overturns at least the individual mandate, they're likely to be on the other side.

They have as much power to - they have more power than the chief to switch that from being a 5-4.

ROSEN: They absolutely do, as I noted in the piece. If Roberts fails, it won't be his failure at all. And you're right that you could just judge success by the numbers, whatever, 14 percent 5-4s. But I don't think anyone would dispute, least of all Roberts himself, that a case in which the court strikes down both health care by 5-4, having already struck down campaign finance and affirmative action, would be perceived as(ph) the public as a partisan court.

And that's why I think Roberts, who is so concerned about avoiding that perception in the public, must have been distressed by this recent Washington Post poll suggesting that 50 percent of respondents, in particular Democrats and independents, expected the court to decide health care based on the partisan views of the justices rather than the rule of law.

It was Roberts who was stressing don't judge me merely by the statistics but whether I can succeed in helping the court transcend politics. And it is not on his shoulders alone, and I'm not suggesting that a failure would be his alone, but it would have to - it would be a sad - I think it's sad for all of us who care about bipartisanship and want to see both sides avoid these divisions.

CONAN: And I misspoke earlier, Roe was not 5-4 but 7-2. I apologize.

SEVERINO: And I wanted to point out something with respect to that. The fact that a decision like Roe vs. Wade was 7-2, something none of us would consider a close case, that's one of these, yay, everyone's on the same side, and yet has continued to be possibly the most divisive case certainly in this last century by the court, I think that shows that it's not all about just the vote count. It's about the public perception of whether the court is really being political or is actually deciding based on the law.

CONAN: Let's get some callers in on the conversation, 800-989-8255. Email talk@npr.org. Will's on the line with us from Little Rock.

WILL: Hi, I just wanted to make the point that in this particular case, since defining the limits of commerce power is kind of so complicated and with the individual mandate, it's largely a question of first impression, reasonable minds can differ on this. I think it's just the kind of issue that's necessarily going to have to be a close call and thus split.

CONAN: So it's inevitable, we shouldn't be worried about it.

WILL: No, I just think because reasonable minds can definitely differ on this, and it is a question of first impression, I think that naturally it should be a close call, and the justices should be thoughtful and more concerned about coming out with the right outcome versus public perception.

CONAN: David Savage, the interpretation of the Commerce Clause, which the caller was referring to, this is the extent of the powers of the federal government. This is highly ideological and highly divisive right now.

SAVAGE: It sure is, and listening to this discussion, I can think of a lot of cases in the past where you could sometimes find a middle ground where the justices can sort of come together in a narrow ruling. I thought the campaign finance case could've come out differently. They could have ruled for Citizens United and done it narrowly, and John Roberts you could say missed that opportunity.

The health care case, boy, it sure looks like it's a yes or no. You either uphold the mandate or you strike it down, and maybe - they're a lot smarter than I am, and maybe they've come up behind closed doors some middle ground or some narrow way to resolve this, but the health care case is so big, and it's so difficult and divisive, and it's one of the ones where I don't see any obvious, narrow middle ground.

It's a sort of - as the caller said, it's a sort of a yes or no question, and it sure looks like they're going to divide that way.

CONAN: And for example, the other divisive case, gay marriage, the California Proposition 8 case, a lot of people suspect they could uphold the lower court decision, strike down Proposition 8 but hold it only to California, which would be a much narrower decision than applying it across the country. So either way, across the country.

SAVAGE: Yeah, that's exactly right. I mean, that may be the way it's going to play out. Gay marriage will get to the Supreme Court, we'll make a big deal out of it, but they'll find a way to say this is a California-only decision, and it will not have a - it will not be a national earthquake.

CONAN: Jeffrey?

ROSEN: There are some cases, I agree with David, where it's easier for John Roberts to find a narrow basis. For example, in upholding the Voting Rights Act a few years ago, John Roberts - people expected the court to strike it down 5-4. He came up with an argument that didn't even occur to the government lawyers and allowed a municipal utility district to opt out of federal coverage based on a basic - a very creative legal argument, and he got 8-1 for that position.

Now, next term - actually, right now as we speak the court is deciding whether to reconsider a voting rights case for next term. That'll be the time when it may be harder to avoid the 5-4. So it's true that in some cases it's easier to do this than others.

But if this is a close case, as the caller said, one traditional definition of judicial restraint embraced by Judge J. Harvie Wilkinson, a respected conservative federal appellate judge, deferred to the legislature in the face of uncertainty. The tide goes to deference. If it's really a novel argument, and reasonable people can disagree, courts are supposed to defer to the political process and not second-guess it, and conservatives used to embrace that definition of judicial restraint. Wilkinson thinks they should in the health care case, which he thinks the court should uphold.

CONAN: And Carrie Severino, that raises another issue, restraint versus activism.

SEVERINO: Certainly, but I think deferring to the political branches isn't what we mean by judicial restraint. Judicial restraint is when a judge defers to the law versus their political preferences. To redefine it and say any time you go against what the legislature has determined, you're being activist, that isn't a terribly useful result, and I don't think the conservative position has ever been let's just defer to all of Congress, particularly - even if that is appropriate in cases of, say, interpreting a regulation or interpreting aspects of what a law means, defer to what Congress - how Congress defines it, certainly.

But in terms of the constitutional limits on Congress itself, that is leaving the foxes in charge of the hen house. We don't let Congress determine its own limits.

CONAN: Email from Ann(ph), who identifies herself as an attorney: It's important to remember that often the dissent in a Supreme Court case can be a key point in a subsequent case. Many a reported case has quoted and even relied upon the wording in not just the dissent but even in something as seemingly tangential as a footnote in the case. So you don't get those in 9-0 decisions, Jeffrey.

ROSEN: You don't, that's very true, and some of the footnotes - of course this is the stuff that law professors' hearts leap to - but they've become the source of many of our liberties. Footnote 4 in the Carolene Products case, as any lawyer listening will know, is the whole basis for the fact that the court strongly protects individual rights and liberties and defers to the legislatures in matters of economic regulation.

So the excellent call suggests maybe John Roberts was wrong to value consensus. There's a strong position embraced by Thomas Jefferson, as opposed to John Marshall, that it's good to have lots of separate opinions and dissents because this is good for democracy, it's transparent, it will allow competing views to be aired. Roberts was quite idealistic in embracing the Marshall view, but there is a competing one, and the caller stated it very well.

CONAN: Let's go next to John(ph) . John's on the line with us from Miami.

JOHN: Yes, sir. I'm actually a Democrat who finds the individual mandate unconstitutional, and I'm no fan of John Roberts. But I don't understand this almost fetishizing of consensus and bipartisanship that exists in our society and this particular discussion. You have people - they have views. Some view the mandate as constitutional. Others say it's unconstitutional. What good comes out of consensus on this for them to find some narrow way not to really address the weightiest issues there that are the most important? What good comes out of them finding consensus on some minute issue that doesn't really reach the merits of the case? I just don't see the value in it.

CONAN: Jeffrey?

ROSEN: I think Roberts put it very well. He said politics are closely divided, the same with Congress. There ought to be some sense of stability. If the government is not going to polarize completely, it's a high priority to keep any kind of partisan divide out of the judiciary as well. And precisely because - as the caller states, precisely because everything is so polarized, there should be one branch of government that people on both sides of the aisle can view as deciding on the basis of law rather than politics, because these issues are so contested.

There are good strong arguments on both sides. I have to say, I may be the last believer - I still embrace Roberts' vision. I think it was striking that it was just at the beginning of his term he thought he could pull this off, and gosh, things have proved to be much, much more polarized than he expected. So I hope he sticks to his guns.

CONAN: Carrie Severino?

SEVERINO: I think John is correct, and that consensus is not - it may be valuable in some cases in terms, like I said, of not being worried the court was going to immediately overturn something, but it is more important to get a correct answer, particularly if the question becomes then we'll come up with a narrow decision that doesn't leave us clear precedent going forward and we can't apply to other cases and just leaves these very important issues undecided. I don't think the court will go that way, as I think they took this case because they knew how important the issue is, how much is riding, in the economy, in the government, on its result.

Right now everyone is waiting to find out how they can proceed with their own health care plans, to find out what this means. I think the court will realize that having a decisive decision and a correct decision is more important than having something that everyone can agree on.

CONAN: Carrie Severino is chief counsel - oh, John, thanks for the call. Appreciate it.

JOHN: Thank you.

CONAN: Carrie Severino, chief counsel and policy director for the Judicial Crisis Network; Jeffrey Rosen kicked over this and HIPPA by writing a piece in New Republic, where's he's legal affairs editor; also with us is David Savage, the Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. You're listening to TALK OF THE NATION from NPR News. Jeffrey, onto another point you made in your piece, that a decision in - to strike down the health care law would also indicate this new kind of judicial activism - the rise of this new kind of judicial activism. What kind of conservative John Roberts wants to be, you said that was another issue.

ROSEN: Absolutely. We see that there are at least two kinds of conservatives in the legal academy and on the bench. Traditionalist conservatives like Judge Larry Silberman and Judge Jeffrey Sutton have upheld the health care law without any hesitation. They said it's clearly within Congress' commerce power and you'd have to overturn decades of precedents requiring deference in economic matters in order to strike it down. But the challenge to the law is being led by a very different kind of conservative.

My friend Randy Barnett, who teaches at Georgetown Law School, is the intellectual architect of the health care challenge. In his voluminous writings over the years, he has embraced a vision that not only should the court overturn 80 years of precedents requiring deference to Congress and the states, but it should resurrect a robust vision of economic liberty and freedom of contract that would strike down a whole swath of federal economic regulations.

And there are judges who embrace Barnett's vision. Judge Janice Rogers Brown on the D.C. circuit at the end of April issued an opinion calling on the court to overturn 80 years of these decisions and calling into question regulations ranging from the Federal Communications Commission, Social Security, the Federal Reserve. The scope of laws that would be called into question by this vision is striking. Now, there was a time when this vision was in the ascendant.

It was - in the progressive era, when the courts struck down minimum wage and maximum hour laws, that period of conservative judicial activism culminated in the decision striking down much of the New Deal in the 1930s. But after Franklin Roosevelt threatened to pack the court, the court retreated. And in 1942, in a case that's very much at issue in this case, basically embraced the idea that if there was some plausible argument for an economic regulation, the court would uphold(ph) it.

So those are the stakes. Let's not pretend that this is a just modest case of applying existing precedents. The question is, are we going to reverse decades of judicial deference in economic matters?

CONAN: Carrie Severino, are the stakes that big in this case?

SEVERINO: Yes. Although I don't think it's about deference so much as about whether there are any limits remaining on the Constitution. We had seen the Commerce Clause, the authority to regulate commerce among the states, stretched and stretched and stretched by previous courts. In the '90s, the Supreme Court started to say, you know, we have to stop. This is - there's not going to be a limit anymore on our government if we keep on stretching these terms any farther.

And now we have the federal government coming up again and saying, no, no, we can take it one step further, and everyone agrees. This is novel. This is a step the government has never taken, to mandate purchase of a product. If we take this step, it's going to - it really can radically transform the relationship of the government to the governed. And since the government couldn't come up with a limiting principle, it's - I think that's what is making the justices so concerned. If there's no limit left, then our limited powers of the government have been completely changed.

CONAN: David Savage, to the degree that you can read this from questions from the justices, do they see the stakes as this great in this case?

SAVAGE: They definitely think this is a big deal. I mean, they granted three days of oral argument for it. They hadn't done that in decades. I do agree with Jeffrey in part. I think the deference question is very important. I think people are going to remember what John Roberts said at the time of his confirmation about a modest role, just a guy who calls the balls and strikes, not the star player. If they strike down this law and they struck down the campaign finance laws, that looks like he's a star player, a big deal.

However, I do think Roberts will write an opinion if he's in the majority that says we're only deciding the mandate. We're not going back to revisit the New Deal. He will write it narrowly and say this is not a big deal. All we're doing is cutting out this mandate.

CONAN: So Jeffrey, that would seem to undermine your argument.

ROSEN: No, because it would in fact signal a very fundamental shift in attitude, although you could write an opinion that claimed to be narrow and preserving the cases that require that kind of deference. They would be applied with a new hand and essentially would be inviting people like Randy Barnett and lower court judges like Janice Rogers Brown to continue to achieve the agenda that they have no - they're not concealing their attempt to achieve.

Just next term, the court will consider a challenge to some other economic regulations, and once again the libertarians are going to press them to be activists. (Unintelligible)...

CONAN: Can you guys stay a couple more minutes to take another question or two?

ROSEN: Sure.

CONAN: Thank you. We'll talk more with Jeffrey Rosen, who you just heard; Carrie Severino, who's also with us; and David Savage of the Los Angeles Times and the Chicago Tribune. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.


CONAN: In just a couple of minutes, we're going to be talking with Chely Wright about a new documentary that follows her decision to - the country music star's decision to come out of the closet and her transition to become a gay activist. But we wanted to continue our conversation about the stakes at the Supreme Court when the decision comes down in the next few weeks on the - President Obama's health care law. With us, Jeffrey Rosen, legal affairs editor for The New Republic; Carrie Severino, chief counsel and policy director for the Judicial Crisis Network; also with us, David Savage, who's the Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. And let's see if we get another caller in. This is Frank, and Frank is with us from Traverse City in Michigan.


CONAN: Hi, Frank. Go ahead, please.

FRANK: I think, personally, that the Supreme Court lost any pretense it may have had towards being a nonpartisan institution back in 2000 when it handed the election to George W. Bush. I realize that the makeup of the court is different now than it was then, but, you know, they stopped the vote recount and handed the election to W.

CONAN: If it...

FRANK: And I don't think it's possible for them to ever get any sort of perception from us in the public that it is not a partisan institution back.

CONAN: If it had been 5-4 the other way, it would still have been partisan in your view?

FRANK: The whole point was, is they stopped the recount, and they stopped the process, the voting process that, you know, counting - trying to figure out who voted for whom. They stopped the process and handed the election to George W. Bush, you know?

CONAN: Let me ask Carrie Severino. After that decision and the Citizens Untied case on campaign finance, you see public estimation for the Supreme Court now -we're talking in Washington, D.C. where public opinion favorability ratings for Congress are at new depths, in single digits, and the court is the most admired institution of government. Nevertheless, it starts to decline following those two decisions.

SEVERINO: Actually, I mean, the - to go to our unanimity versus 5-4-decision point, Bush v. Gore was not a 5-4 decision on the merits of the case. The main question there was a 7-2 decision. So this wasn't actually the political, ideological divide that people try to make it out to be. I think that's more part of the spin following the decision, and that is almost universally political. So the court itself, not necessarily, but I certainly wouldn't put it past the spin following the decision to do so.

And I think actually the court has always maintained a position of being the most revered branch of government. What you've seen is a general decrease of public perception of government, and the court has kind of been dragged down along with it. But actually in 1995, the Lopez decision, another Commerce Clause decision, was heralded by The New York Times as practically the Articles of Confederation brought back. This is a terrible throwback and ruining hundreds of years of history.

You know, people managed to survive that. And the court's opinion didn't drop tremendously after the Bush v. Gore decision. I think what we're seeing now is just people who are concerned about government in general. In fact, according to many polls, the court - the opinion of the court rose following the oral arguments in this case. I think that indicates that if anything the 75 percent of Americans who believe that the individual mandate is unconstitutional were encouraged by the way the arguments went.

CONAN: Jeff Rosen?

ROSEN: The caller suggested that the part of Bush v. Gore that was partisan was the part stopping the manual recount. And of course that decision was 5-4, and therefore Democrats were correct to perceive it as a partisan divide. And in fact, after Bush v. Gore, approval of the court among Democrats plummeted dramatically from being above 60 percent to below 30. Among Republicans, it rose. Overall it was a wash. But it is striking that although, as you said, Neal, approval for the court remains above Congress, it has been dropping since Chief Justice Roberts became chief, and it is now in the 40 percent range, I think, in 2005.

This is lower than at any time in the court's recent history. And there's this recent Washington Post poll expecting - 50 percent of the country expect the court to vote based on partisanship. I cannot imagine those numbers would not be of concern to Chief Justice Roberts since he said this is precisely what he wanted to avoid - people perceiving the court and expecting it to vote in partisan terms.

CONAN: David Savage?

SAVAGE: You know, on the consensus front, it is possible on the immigration case that Roberts will come up with something that sounds in the middle, because at the argument John Roberts made the point that part of the Arizona law that said Arizona police need to call the federal government if they've got an illegal immigrant, maybe we can uphold that, but strike down all the parts of the Arizona law that allow Arizona police to arrest and hold illegal immigrants.

And if they follow through(ph) - it's actually possible they could find a consensus to uphold a narrow part of the Arizona law, but to knock out the provisions that would allow the state to grab and hold illegal immigrants. And so to be an optimist, I think it's possible that it could find a good middle ground position in that case.

CONAN: David Savage, I suspect we're going to be talking with you again over the next few weeks. Thanks very much, as always, for your time.

SAVAGE: Good to be here.

CONAN: David Savage of the Los Angeles Times and the Chicago Tribune. Jeffrey Rosen, thanks very much for joining us today.

ROSEN: A pleasure to be here.

CONAN: Jeffrey Rosen, who's the chief - the legal affairs editor for The New Republic. And, Carrie Severino, appreciate your time as well.

SEVERINO: Thank you.

CONAN: Carrie Severino, chief counsel and policy director for the Judicial Crisis Network. Chely Wright coming up. Stay with us. It's the TALK OF THE NATION. Transcript provided by NPR, Copyright NPR.