Thursday, July 18, 2013

Senator Lee Criticizes Chief Justice in New E-Book

This article first appeared in the July 17, 2013, issue of the National Law Journal’s Supreme Court Brief.

Since joining the Senate in 2011, Mike Lee has gained a reputation for criticizing President Barack Obama. In his new e-book, though, the junior Republican from Utah takes on a fellow conservative, Chief Justice John Roberts, and his 2012 opinion upholding the Affordable Care Act. I recently spoke with Senator Lee about the project.

Lee, a former Howrey partner, writes that Roberts had “distinguished himself as a fair-minded jurist and a true constitutional scholar—a man seemingly committed to the rule of law and to core constitutional principles.” This “hard-earned distinction was turned on its head” after healthcare, according to Lee.

Roberts’ decision, in Lee’s view, smacks of an improper, split-the-baby compromise, a nod to both limited and big government. It put up a gate with the Commerce Clause, but opened it with the taxing power, invalidated, but then changed the Medicaid provisions to save them.

This was “contrary to what we expected from and thought we knew about Chief Justice Roberts,” the book states.

Lee acknowledges the possibility that Roberts made the decision because he ultimately believed the law required it. At the same time, Lee, who clerked for Justice Samuel Alito, strongly infers that statements from the media and political leaders swayed Roberts.

In the book’s foreword, Lee mentions his late father, former Solicitor General Rex Lee, and includes an interesting factoid: One of the last of Rex Lee’s 59 Supreme Court arguments, a 9-0 victory, was against a young Roberts.

“My dad held John Roberts in the highest regard,” Lee recalls, “and recognized how unusual it is to find in one person so much intellectual horsepower, professional talent, refined interpersonal skill, and genuine decency.”

I asked Lee how his father might have reacted to Roberts’ healthcare decision.

He would have been “disappointed and surprised,” for sure, but probably would not have written a book, Lee mused. Lee felt motivated to write because he saw a direct intrusion on Congress and, more personally, his job.

Although the title puts the focus on Roberts and there is a polemic flavor throughout, the book reads, overall, more like a primer on the healthcare case, from a conservative’s perspective.

As Lee told me, he wanted “to explain, in lay terms, what happened.” Consistent with a general audience, the book defines terms like “id.” and “Slip Opinion.”

Regarding the e-book format, Lee noted in our interview that political publishing is moving in that direction. He compared e-books to online singles in the music industry; he liked the idea of getting the book out quickly.

Also, Lee had in mind about 70 pages for the topic, which fits an e-book. That was as much as people would like to read about one case, he guessed, except for those who have already read the hefty healthcare decision itself.

Lee’s book ends with a lead balloon, a proposed bill attempting to nullify the healthcare decision’s tax ruling, which has little chance of passing in the Democrat-controlled Senate.

The book does not discuss the fact that prominent conservative judges who sit on federal appellate courts also voted to uphold healthcare. That being the case, why should Roberts be singled out and his motivations questioned?

Lee responded in the interview that Roberts’ approach was uniquely convoluted and more damaging, because it spoke for the Supreme Court.

The book currently tops Amazon’s best-seller lists for the judicial branch and for Kindle e-books about the legal system.