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.
Why
John Roberts Was Wrong About Healthcare: A Conservative Critique of the Supreme
Court’s Obamacare Ruling does
not hide its political leanings. The title tells the story.
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.
The book currently tops Amazon’s best-seller lists for the judicial branch and for Kindle e-books about the legal system.
