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When Enough is Enough—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on June 14, 2012.

When Enough is Enough
By Linda Greenhouse ’78 MSL

What to do while waiting for the health care decision. . . . Perusing one of the tiny handful of decisions the Supreme Court has issued in the past couple of weeks, an old, never-to-be-forgotten one came to mind: Bush v. Gore. Not that the new decision, Armour v. City of Indianapolis, had anything to do with presidential politics. Quite the opposite: its subject was something that happened at the most local level of government, a sewer improvement assessment in a subdivision of Indianapolis.

The city gave the 180 property owners affected a choice of how to pay the $9,278 assessment: in a lump sum, or over time with interest. Most chose to pay over 10, 20 or 30 years. Three dozen paid up front, and the city then played them for suckers, announcing a year later that it was changing the way it financed sewer improvements and would issue bonds to cover most of the cost. It would forgive the indebtedness of the installment-payers. But the city refused to give the full-payers any of the refund they demanded.

The full-payers then did what any red-blooded American would do in such a galling circumstance: sue. Their theory was that the city had violated their constitutional right to equal protection. (Does that bring back warm memories of Bush v. Gore? Wait, there’s more.) When the Indiana Supreme Court ruled against the unhappy homeowners, the homeowners appealed to the United States Supreme Court, where they met the same fate.

Writing for the 6-to-3 majority, Justice Stephen G. Breyer explained that all that was at stake was an economic regulation, to which the court gives the lowest level of scrutiny. “As long as the city’s distinction has a rational basis, that distinction does not violate the Equal Protection Clause,” Justice Breyer said.

Indianapolis had defended its action on the ground of administrative convenience. Processing refunds would have been a hassle, Indianapolis had said, arguing further that refunds for this group of homeowners would have encouraged property owners similarly affected by the policy change throughout the city to demand refunds, too.

And that was good enough, Justice Breyer said: “The Constitution does not require the city to draw the perfect line nor even to draw a line superior to some other line it might have drawn. It requires only that the line actually drawn be a rational line.”

Chief Justice John G. Roberts Jr. wrote a spirited dissenting opinion that Justices Antonin Scalia and Samuel A. Alito Jr. also signed. No, the chief justice said, the city’s reason was not good enough even to meet the minimal standard of mere rationality. Alluding to the language of the 14th Amendment, he objected: “The Equal Protection Clause does not provide that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws, unless it’s too much of a bother.’ ” And he added: “I think the city workers are up to the task.”

Here’s the thing: In Bush v. Gore, the five most conservative justices, no great fans of an expansive reading of the Equal Protection Clause, surprised the world in 2000 by declaring that the Florida Supreme Court’s recount order violated equal protection in failing to assure uniform vote-counting standards across the state. The five were then so abashed at having invoked the Equal Protection Clause to stop the recount, and so afraid of inadvertently unleashing a new equal protection revolution, that they proclaimed that their opinion was never to be cited in any future case.

The Indianapolis case is the first decision since then, as far as I can recall, to repeat the equal protection flip, the conservatives seeing an equal protection foul where the others find none. I’m not counting cases about affirmative action and other racially conscious government policies, part of a bigger project where conservatives long ago flipped the traditional equal protection paradigm to view whites as the victims of government-sponsored discrimination. I mean novel claims of equal protection outside of race, equal protection as a vehicle for judicial intervention in policy choices made by other branches of government.

Readers of this column know that I like to put obscure or overlooked Supreme Court decisions under a microscope to see what they might tell us about what’s really going on at the court. In its majority and dissenting opinions, the Indianapolis case has all the appearance of a proxy war that must be about some bigger issue than these homeowners’ particular plight. The case was argued back on Feb. 20 and the decision was not issued until June 4. That’s a long time to produce a 13-page majority opinion and six-page dissent. The facts were clear and the legal issue straightforward. Something else was going on.

Chief Justice Roberts rarely casts a dissenting vote: this was only his fourth out of 52 decisions issued so far this term, the fewest dissenting votes of any member of the court. And when he does vote in dissent, he doesn’t usually assign himself to write the dissenting opinion. This was only his second one this term, but I actually discount the other one, a dissenting opinion in a case with federalism overtones, Douglas v. Independent Living Center. In that case, I believe, the chief justice started out writing a majority opinion, but Justice Breyer managed to snatch the majority out from under him and the chief published his intended majority opinion as a dissent.

I should note that this is just my supposition, based on how the opinions in that case were structured. But whether the chief justice’s dissent in the latest case is counted as his first or second, the question remains: why did he care so much?

The libertarian scholar Richard Epstein, in an essay he published the other day in a journal of the Hoover Institution at Stanford University, offers an interesting perspective on the higher stakes in this little case. The court missed an opportunity, Professor Epstein writes in “Intellectual Laziness on the Supreme Court,” to harness the Constitution as a bulwark against government “shenanigans” and “business and fiscal madness.” Not only should the court have ruled for the homeowners, he argues, but it should have used the case to scrap the highly deferential “rational basis” as a standard of review for economic regulation.

The only problem, as Professor Epstein acknowledges, is that there is scant evidence that Chief Justice Roberts is on board with the grand libertarian project of turning back the clock to the pre-New Deal era, when the Supreme Court invoked notions of constitutional due process to erect barriers against government regulation of the economy. (The current court’s appetite for using the First Amendment as a deregulatory tool is another matter, a big subject for another day.) The chief justice’s dissenting opinion, Professor Epstein writes, while “worthy” and “sensitive,” failed to “approach the case as a matter of first principle.”

But what if the majority and the dissent, while skirting a battle over “first principles,” were nonetheless shadowboxing in this case over something highly significant? Something, for instance, like government regulation of the market for health care? At the end of his dissenting opinion, Chief Justice Roberts conceded that the justices in the majority had much of the weight of modern history on their side. “Our precedents do not ask for much from government in this area,” he said, adding that “we give great leeway to taxing authorities in this area, for good and sufficient reasons.” Then comes this line: “But every generation or so a case comes along when this court needs to say enough is enough, if the Equal Protection Clause is to retain any force in this context.”

Enough is enough? In the context of the Commerce Clause, of course, that’s the basic argument of the plaintiffs in the health care case. But try to import the chief justice’s “enough is enough” from the one context to the other, to predict the imminent outcome of that case, and the microscope’s lens becomes blurry. For one thing, Justice Anthony M. Kennedy is part of Justice Breyer’s majority in the Indianapolis case. It’s hard to imagine that the court could muster the votes to strike down the Affordable Care Act without Justice Kennedy on board.

To further confuse matters, Justice Clarence Thomas also signed Justice Breyer’s opinion, leaving his usual ideological allies to fend for themselves. Ordinarily, Justice Thomas, who rejects many precepts of modern constitutional law, is the most libertarian of the justices. What to make of his seemingly contrary vote in this case? Chances are this was a case in which his self-described “originalism” trumped his libertarian leanings; Justice Thomas may have concluded that whatever the framers of the 14th Amendment thought they were doing, protecting homeowners from unfairly apportioned tax burdens was not on the list.

No conclusions here. Just another mystery as we wait for the big one.