One day in the spring of 1989, Barack Obama and I found ourselves discussing a case whose relevance to the Supreme Court’s 2012 health-care decision neither of us could conceivably have anticipated at the time. I had recently hired Barack—I’ll call him that here because that’s what I called him then—as my principal research assistant, and he was helping me with a complicated law-review article about what lawyers can learn from modern physics. I can still recall him sitting on the floor of my law-school office on that particular day, a lanky kid in jeans and leather jacket, the sun streaming in through my windows, as we went back and forth discussing a Supreme Court decision that had been handed down several months earlier.
The case, DeShaney v. Winnebago County, centered around a child named Joshua who had been repeatedly beaten by his father. Despite the many warnings the social-service agencies of Wisconsin had received, nobody had come to Joshua’s rescue, and he had ended up in a vegetative state. Joshua’s guardian sued the social workers and other officials whose inaction had permitted these terrible beatings to occur, claiming that their irresponsible failure to act had deprived Joshua of his liberty in violation of the U.S. Constitution. But the Supreme Court found no violation because, in the reasoning of then-justice William Rehnquist, the state’s agents had been guilty of nothing more than “inaction.” Barack and I both agreed that the distinction between “action” and “inaction” was not significant enough to justify so brutal a result.
In the wake of the Supreme Court’s decision to uphold the Affordable Care Act last month, our long-ago discussion about DeShaney has been on my mind. One reason is that the philosophical distinction between action and inaction—between purchasing health insurance and failing to purchase it—was at the core of the legal debate surrounding Obamacare. The other reason is perhaps more surprising. While we were both persuaded that Rehnquist’s decision in DeShaney had been wrong, I distinctly remember Barack saying something like, “But Professor, we’ve got to be careful not to suggest the government’s responsible for every injury it might’ve been able to prevent.” “What do you have in mind, Barack?” I think I asked. “Well, we don’t want to see the world in a way that absolves people of personal responsibility for the harm they do. And we don’t want rules that invite government agents to barge too casually into family life.”
This was just one of the many moments at which I realized that, while Barack was idealistic, he was pragmatic as well. Though liberal and committed to a caring society, he was also deeply concerned about personal responsibility—and was able to see the limits of his own positions.
Double-back for a moment to the time a dozen years earlier that the young John Roberts—who last month singlehandedly decided the fate of Obamacare—was my constitutional law student. I never got to know him nearly as well as I did Barack. He had taken just one basic course with me, while Barack had taken a basic course and an advanced seminar. Roberts was never my research assistant, and he was but one of more than 200 students with whom I conducted a Socratic dialogue in class.
Still, I found myself thinking about one aspect of that 1977 course as I listened to the Supreme Court’s oral arguments on the Affordable Care Act in March. In that class and others over the years, I had spoken about two well-established legal principles: that Congress can properly use its taxing power to regulate behavior, and that the Supreme Court should make every effort to uphold an act of Congress whenever fairly possible. So I was particularly struck by the chief justice’s questions at the oral arguments about whether it makes sense to insist on calling the act a “mandate” when the only thing that happens when you don’t do what’s required is a modest increase in the taxes you owe to the IRS. Labels might not be decisive, Roberts seemed to be saying: how things work in practice sometimes matters more than what they’re called. That was the moment I started thinking that the chief justice might well cast the decisive vote to uphold the mandate as an exercise of the taxing power, a prediction I made publicly at a time when few others expected either that outcome or that line of reasoning.
Of course, I don’t have any reason to imagine that Roberts recalled anything in particular from the constitutional law course he took with me 35 years earlier. The man has a prodigious memory, but he has plenty of other things to recall. And he obviously had his own well-formed judicial philosophy by the time this case reached him, a philosophy undoubtedly shaped more by the time he spent as a law clerk to Rehnquist than by his education at Harvard Law School.
My point, then, isn’t that Roberts was channeling his once-upon-a-time law professor’s summation of legal principles, but, rather, that my antennae were tuned all the more sharply to the chief justice’s views on the tax issue because of what I had always taught about how the power to tax can be used to regulate—and how judges must at times act pragmatically to save a democratically enacted statute.
President Obama wasn’t in the courtroom when I listened to the chief justice’s questions, but my mind flashed back to the only time I had ever seen Obama and Roberts together: when I sat on the Washington Mall in bone-chilling cold on Inauguration Day, Jan. 20, 2009. It was an unforgettable experience to watch one of my former students administer the oath of office to another. Certainly, the two have had disagreements in the years since, most notably over the court’s controversial campaign-finance ruling in Citizens United. And certainly, Roberts is at least as conservative as Obama is liberal. But looking back at the events of the past few years and the past few weeks, it seems clear that both men share at least one guiding value: a genuine belief that pragmatism and even compromise can coexist with principle.
One could see it in the way Obama eventually embraced the idea of enforcing personal responsibility through the individual mandate, which he had opposed as a candidate. And, more recently, one could see it in how Roberts found a well-grounded way to uphold Obamacare—thereby restoring some of the public’s lost trust in the Supreme Court’s ability to play its indispensable role. I could sense, as I watched this drama of my two most influential former students unfold, an intertwined narrative of disparate but intersecting lives, one that lends strength to the peculiarly American blend of principle and pragmatism that has always preserved our Union.