PLANK JULY 2, 2012
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Did Chief Justice John Roberts change his vote in the Obamacare case? Court observers were speculating about that possibility almost as soon as the five-to-four decision upholding the law came down on Thursday. And now it looks like Roberts really did switch. Jan Crawford of CBS News has the big scoop:
Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold.
“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You're on your own.”
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.
The whole story is worth reading. And, according to my law school sources, it is both plausible and credible. Crawford is known to have good connections in the conservative legal movement. Orin Kerr of the Volokh Conspiracy suggests she may have even gotten her information from some of the conservative justices themselves, which would make sense if they are as angry as she says.
Crawford’s story would also help explain a spasm of right-wing commentary appeared around Memorial Day. Linda Greenhouse of The New York Times was among those who took note of it and, after the ruling last week, she explained its possible significance.
For the theory that Chief Justice Roberts pulled back late in the process from declaring the mandate unconstitutional, the best evidence might be external to the opinion, rather than inside it. Around Memorial Day, a number of conservative columnists and bloggers suddenly began accusing the “liberal media” of putting “the squeeze to Justice Roberts,” as George Will expressed the thought in his Washington Post column. “They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional,” Mr. Will wrote. Although the court has been famously leakproof, Mr. Will and some of the others are well connected at the court, and I wondered at the time whether they had picked up signals that the chief justice, thought reliable after the oral argument two months earlier, was now wavering, and whether their message was really intended for him.
Crawford’s story suggests Roberts was worried about public perceptions of the decision and that media coverage may have played a role in changing his mind. Maybe I’m paranoid, but I’m guessing conservatives are going to turn this into an argument that liberals somehow “stole” the decision by “intimidating” the chief justice, as they were suggesting before the ruling came down. (They might be saying that already; I’m on vacation so I haven’t been reading all the commentary.) For what it’s worth, I find that hard to believe. He’s going to be chief justice for the next twenty to thirty years. Who’s going to intimidate him? He can do whatever he wants. It’s not like he has to win an election or raise money.
Roberts may have been worried about the court’s legitimacy. In other words, he may have been worried that contemporaries and historians would see a decision striking down the Affordable Care Act, particularly a decision to invalidate the entire law, as judicial overreach. But that’s precisely what Roberts should have been doing.
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18 comments
Ridiculous. Conservatives up in arms that liberals were operating some collection racket, spotting the wobblies and bashing their knees in. This is rather baroque, especially when you read the dissent, which is hyperbolic and principally motivated by partisan animus. Roberts' switch in time really did save the nine, because although conservatives would have won the war against Obamacare, the dirty laundry of that dissent would still be getting aired. Multiple times, the conservative justices purport to do what Congress would have intended by striking down the whole law. So because Medicaid expansion is coercive, 59-60 Democratic Senators would not have passed any health care reforms. And because they think the mandate cannot be sustained, it was the intent of the Congress not to pass anything, as opposed to severing it from the rest of the bill, as the Obama administration actually argued before them. It's over the top and probably deserves to be discussed in the media for a week, just so regular Americans can see how power-hungry movement conservatives are to turn the judiciary into a third legislature chamber by other means.
- chaitless
July 2, 2012 at 8:12am
That last paragraph really sums it up. Perhaps the "liberal" media did put the screws to him to make the right call, but it was the right call. The SCOTUS is becoming way too activist in all the wrong ways: only upholding the law like they should when they agree with it, tossing it to the wind when they don't.
- GSpinks
July 2, 2012 at 11:13am
I'm sure they'll be back to find the requirement to provide contraception as unconstitutional. With any luck, shortly before November 6. I'm sure plenty of women will have registered to vote by then.
- Nari224
July 2, 2012 at 11:34am
I'm sure if the right had any ability so still shock me I would be shocked, but based on the leverl of anger and sense of betrayl they feel towards Roberts, I take it was fact that we will be roasted over the fire somehow.
- ARealHero
July 2, 2012 at 11:52am
Someone please explain to me how there is any possible way the "liberal" media could put pressure on a sitting Chief Justice who is not yet 60. They, and we, have absolutely nothing with which to pressure him. He can listen to or ignore the media, the public, the President, and for the most part Congress (who could, in theory, impeach him, or chastise the court with funging cuts, but that is so unlikely as to be completely incredible) to his heart's content, and at worst put history's assessment of him at risk - and probably not even that. I get it that conservatives are bitter. I even get it that they are liars, and quite often just barely not stupid. But can they really be so stupid as to think they'll make themselves any more credible with the court or the public with this nonsense? Far more likely, pushing this story line will only cause Roberts to be less likely to listen to his conservatives "sponsors."
- IowaBeauty
July 2, 2012 at 12:23pm
I imagine Roberts is now fairly convinced that Scalia is on his way to losing his marbles and he doesn't want to be (or want the court to be) identified with that upcoming embarrassment.
- ironyroad
July 2, 2012 at 1:08pm
You see Iowa, the thing is, Republicans are best presented as a few very smart/organized and ambitious people having control over a lot of REALLY stupid people. So basically, they can do whatever they want.
- ARealHero
July 2, 2012 at 1:24pm
Maybe Roberts is growing into his position? One can only hope; the fact that we the people can't do anything about this situation is alarming and his power, ditto. I'm quite sure the Founding Fathers didn't intend for a bought and paid for Supreme Court to be invulnerable to the will of the people.
- Sophia
July 2, 2012 at 2:15pm
Heres hoping that the Conservatives go after Roberts so much and so relentlessly he pulls an Arlen Specter and begins to side with the Liberals. I know that won't happen but to some small degree that animosity has to be embittering. For the record I think Roberts scored it exactly right, I was opposed to the mandate but did favor the tax, so thank God Roberts saw it the same way, and Democrats dodged a huge bullet on this one. Hopefully they will learn a valuable lesson, there is no end to Republican obstructionism, never give the bastards an inch.
- blackton
July 2, 2012 at 2:43pm
Good for Roberts! He should invite Scalia to his chambers, and when he arrives send him out for coffee -- just to show him how irrelevant he is.
- dscot
July 2, 2012 at 5:53pm
Y'all are naive if you think Roberts decision was anything BUT political-- and wisely political to not give BHO and the Dems an issue to run against the Repubs. Let the election rise or fall on the state of the economy in October. It is a SCOTUS victory for BHO like Madison vs Marbury was for Jefferson. Pyrrhic. The Roberts decision on the commerce clause is activist-- a trap now with a precedent joined by liberal justices to be sprung by Roberts next term.
- drofnats1
July 2, 2012 at 6:10pm
drofnats, if you think Roberts's decision plays more to Romney's advantage than its alternative, you're deluded. Yes, if the Court had overturned the ACA, it would have given the prez an issue to run on, but it'd be too complex, obscure an issue to gain him much traction, and it would come at the price of making him look like even more of an impotent failure than you already think he is.
- AaronW
July 2, 2012 at 9:12pm
In Crawford's reporting prior to the decision, her CBS News stories always slanted to the Republican repeal side. I kept wondering what was gong on with her. Then, her report on the decision, itself, was even more baffling, because its theme was the commerce clause, not the actual holding and it's rationale. You almost had to wait until midway into her report to even find out that the law had been upheld and why. Giving Crawford the benefit of the doubt, I assumed that she had written her post-decision report before the decision was handed down and then just made a few tweaks to it afterwards to conform it to what had actually happened. But now the real story is becoming clear. She slanted to what she thought was going to be the winning side, slavishly representing their bigoted anti-Obama, constitutionally suspect views as settled law. In return, she got their "exclusive" story trashing Roberts. Good work,, Crawford.
- CABChi
July 2, 2012 at 9:36pm
Aaron. To overturn ACA would make SCOTUS immediately look very political. Roberts is smart enough to avoid that in an election year... meaning he's politically smarter than most tnr Dems who treat strategic as a four-letter word.
- drofnats1
July 2, 2012 at 11:30pm
Blackton- The mandate IS the tax (or penalty or whatever you want to call it). Dhurtado
- NR143296
July 3, 2012 at 1:08am
If John Roberts allowed the media to change an opinion he thought was right to an opinion he thought would be acceptable to the academic set, he is a coward. Scalia, Thomas, Kennedy, and Alito are not cowards.
- john336
July 3, 2012 at 7:25am
I can see how difficult it is to study Constitutional Law. The opinions themselves explain little.
- Nusholtz
July 3, 2012 at 8:14am
Well, john, as far as I know, there is no evidence that Roberts changed his mind (if he in fact did change his mind) as a result of pressure from the media or the "academic set." Roberts' track record has been that he is ideologically conservative, but that he is also concerned about maintaining the legitimacy of the Court, and therefore wants to pull it back from being an openly political body. He therefore is more apt than the other justices to actually adhere to the canons of constitutional interpretation that prevent the Court from being an uber-legislature -- namely, that congressional enactments are to be presumed valid, that they should not be invalidiated unless they unambiguously violate the Constitution, that the Court should try to find a way to uhpold congressional enactments, and that it should not decide constitutional issues that need not be decided in order to resolve the case. Roberts appears to have conformed to all of those principles save the last one. (He reached the commerce clause issue when it was unnecessary to do so). If anything, it was courageous of Roberts to do that in the face of the intense heat he apparently was enduring from four of his fellow justices. On the other hand, three of the four dissenters are in fact cowards. I except Kennedy from that description because I think he is at least consistent and sincere in his libertarian bent. Scalia, Thomas and Alito are willing to reach out and trash congressional enactments based on politics or personal opinion, knowing that they will suffer no consequences -- political or otherwise -- for doing so. That's cowardice. Dhurtado
- NR143296
July 3, 2012 at 9:47am