Washington, DC, sometime after midnight…a knock on the door.
ROBERTS: Oh it’s you, c’mon in. I gotta tell ya, you’ve put us in a bind, Anthony, a real bind.
KENNEDY: I was kinda hard on him, wasn’t I?
ROBERTS: Hard? You creamed the guy!
KENNEDY: I couldn’t help it. He’s the Solicitor General of the United States, and he’s in the Supreme Court coughing and stumbling…anyway he couldn’t have possibly thought that defending this thing under the Commerce Clause was going to fly…
ROBERTS: Sure, sure, but now we’ve got a real problem on our hands. Cuz, you know, this Court has to display total impartiality at all times…(pause)
ROBERTS: …and now that you’ve come over to our side, we’ve got that darned 5-4 judicial activist thing going on again.
KENNEDY: Yeah, John, I’m awfully sorry about that, it’s just my interpretation.
ROBERTS: Overturning this thing, yikes…half the country would scream bloody murder…so I’ve been thinking, if it’s gotta be 5-4, perhaps we can split the baby a better way…perhaps the wiser choice is to…um… uphold it.
KENNEDY: Uphold it? On what grounds?
ROBERTS: Well…I…um…how about, “promoting the general welfare of the United States” (pause)
KENNEDY: But John, that’s…that’s…that would be calling it…a tax! (longer pause) Now BOTH sides of the country will scream. They’ll tear us to pieces!
ROBERTS: Yeah, that’s true. So I was thinking about adding in some language.
KENNEDY: Language, John?
ROBERTS: Try this: “We do not consider whether the Act embodies sound policies…Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders… Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
KENNEDY: Holy crap, John! Uphold this thing, call it a tax, and encourage the electorate to rise in revolt?
ROBERTS: Pretty good, don’t you think?
KENNEDY: My God. You’re throwing it right back at ’em.
ROBERTS: Rubber and glue, my friend, rubber and glue. (very long pause)
KENNEDY: It’s pretty brilliant. But one problem. Who are you going to get to flip? Sam? Tony?
ROBERTS: Don’t be ridiculous.
KENNEDY: Well, Clarence, then.
ROBERTS: Who’s Clarence?
ROBERTS: Nope, it’s gotta be me, I guess. I’ve already sort of fleshed out the Opinion, I’ll just finish it up before I head home. Jeez, sometimes I hate being the boss.
KENNEDY: Alright, John, alright. So how can I help? You want me to write a blistering Dissent, give you some cover?
ROBERTS: Nah, it’s gotta have a lot more red meat than that. There’s only one thing to do. (pause) I’m gonna get Clarence to write it.
KENNEDY: Who’s Clarence?