The Supreme Court issued a landmark decision known as Brown v. the Board of Education in 1954. It overturned the 1896 Plessey v. Ferguson decision, which permitted the practice of providing separate but equal facilities in education. The decision was a unanimous 9-0 decision.
The decision was the most important decision of its era. Chief Justice Warren knew that. He had discussions with several Associate Justices who were initially opposed to the decision. He was able to win over the opposition in order to deliver a unanimous verdict that positioned the Court squarely behind the change it made.
Today, we have the most important issue before the Court since Gore v. Bush, and even perhaps since Brown. The nation has been torn apart for three years over Obamacare. The issue is now before the Court and it has witnessed the Court providing three days of oral argument on the issue. Clearly, the Court is aware of the importance of its actions in the eyes of the nation.
The parallels to Plessey v. Ferguson will be drawn in future history books. But I am curious about one potential parallel, and that is the role of Chief Justice Roberts.
Late this week the Court will take its initial votes on the case it just heard. Assuming that the mandate is struck down, as many commentators predict it will do, will the Court separate the issue from the overall bill, or will it declare the entire health care bill unconstitutional? Within this question are several more subtle questions about Chief Justice Roberts. How will he manage these questions behind closed doors within the Court?
Chief Justice Warren was able to persuade those fellow justices who were initially opposed to Brown to support the majority. I presume that Chief Justice Roberts will do the same. Democrats are poised to campaign against the Court in this year’s election if the decision comes down 5-4. The nation will be better off if the decision to strike down the mandate comes down 6-3, 7-2, or even 9-0. Where do the additional votes come from? Sotomayor? Breyer?
Even if additional votes are available, will there be a cost? Will the effort to sever the mandate from the overall bill be strengthened? The Court does not do trade-offs, but there are ways to persuade. I assume that Roberts will construct the questions that the Justices vote on in such a way to achieve maximum consensus on the core issues. He will assign opinions in such a way to allow the maximum number of Justices to coalesce around the Court’s central positions. What additional actions and arguments will Roberts make to his colleagues to persuade the Justices toward unanimity?
On the other hand, can Roberts even attempt unanimity? Are the members so entrenched in their positions that any attempt by Roberts to bring them together will fail? Has the partisan nature of our politics reduced the role of Chief Justice?
I do not know the answer to any of these questions. We may not know for decades. I just wish I were a fly on the wall in those chambers to observe all their conversations.