What many analysts suggested was likely is reportedly true, according to CBS News: Supreme Court Justice John Roberts altered his original position on the health care reform law. If he had stuck with his original inclination, the law would have been completely overturned:
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.
That’s what led some legal analysts to start asking if Roberts changed his position:
The inner-workings of the Supreme Court are almost impossible to penetrate. The Court’s private conferences, when the justices discuss cases and cast their initial votes, include only the nine members – no law clerks or secretaries are permitted. The justices are notoriously close-lipped, and their law clerks must agree to keep matters completely confidential.
But in this closely-watched case, word of Roberts’ unusual shift has spread widely within the Court, and is known among law clerks, chambers’ aides and secretaries. It also has stirred the ire of the conservative justices, who believed Roberts was standing with them.
After the historic oral arguments in March, the two knowledgeable sources said, Roberts and the four conservatives were poised to strike down at least the individual mandate. There were other issues being argued – severability and the Medicaid extension – but the mandate was the ballgame.
This will be interpeted in differing ways:
UPDATED: This is written at an airport and some of it was cut off. Here’s other parts of the report, which raises the issue of external pressure in the form of media and political consensus of the impact a kill-the-bill-totally ruling would have on the court’s legitimacy among some members of the American public:
Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.
Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.
But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.
There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.
Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.
It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.
It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.
Some informed observers outside the Court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the President. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law. There was no doctrinal background for the Court to fall back on – nothing in prior Supreme Court cases – to say the individual mandate crossed a constitutional line.
But the implication in this report is that it is a possibility that he changed it due to the clamor out there.
Which brings us to where we are politically:
Yes, it does seem inconceivable today, the way our politics works, that someone on the left might change his position after pondering arguments on the right or someone on the right might change his position due to some arguments on the left. In fact, those kinds of folks in political parties (partisans called DINOS and RINOS by their detractors) are the ones who are being steadily purged from our political life.
But once upon a time it wasn’t that surprising. Cynacism is much easier to grasp these days.
And, hey, it sells cool t-shirts.
HERE’S A DIFFEREING VIEW: National Review:
The conservatives found Roberts’s reasoning so flawed that they refused to join, or even acknowledge, his opinion, even in the areas where they agreed (such as the limits to the Commerce Clause) .
Roberts’ change of heart was almost certain to have been driven by left-wing media anger around the possibility that the law would be overturned. Roberts reads the papers, and is very concerned about the Court’s image. Roberts tried to lobby Kennedy to join him and leave the other conservatives, but Kennedy refused. The conservative dissent was not originally written as a majority opinion, as some have speculated, but reads strangely because the conservatives refused to acknowledge Roberts’s opinion. Perhaps, the next time a Republican president nominates a Supreme Court justice, he should make the candidate swear to never pick up a newspaper.
The bottom line, if Jan Crawford is right, is that conservative justices can be blackmailed by left-wing editorialists. It’s not a pretty picture.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.