CBS News: Roberts Switched Views to Uphold Health Care Law (UPDATED)
RJ Matson, The St. Louis Post Dispatch
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.
Share This
If the person running their mouth outside the walls of the court is found, they should be fired on the spot!
If it is found to be another justice, they should be removed using whatever legal means possible to remove them from the court.
How can the court rule on controversial legislation if every deliberation becomes public knowledge in the future.
And this is a huge concern if politics and reputation of the court and one man is the reason one ruling was made compared to another. The basis of all rulings should be the consitutionality of the legislation and how the constitution is interpreted by the justices. Nothing else should be considered or every President going forward will chastize SCOTUS in every state of te union address like Obama did concerning the funding of elections.
Frankly, although I’m glad that Justice Roberts upheld the individual mandate by refusing to quibble over whether it was really a tax or not, I had hoped that he and the other justices would discuss the many merits of the health care bill. Instead he cut right to the chase by noting that fines will be collected from non-other than our Federal income taxes–making them absolutely taxes by definition.
That will do. However, the fact that Article 1, section 8, assigns Congress the task of “providing for the common defense and general welfare,” of our citizens, has always been enough for me. What could alleviate the suffering of our uninsured citizens more than providing for the general welfare, by helping them obtain asffordable health insurance coverage?
Although Robert’s decision to let the bill stand was based on a bit of convoluted reasoning, it was never-the-less accurate, and the right decision to make. I like to think that he was not just concerned with saving the reputation of the Court, but also upholding the law in the manner that, he had personally determined, is the way that the Constitution calls for.
I also think that the “broccoli” argument was based on a flawed analogy. It failed to mention that the individual mandate is an absolute necessity that will allow ALL the other provisions in the health care law to work as intended. In that regard we should consider, instead, the hypothetical scenario that planet Earth and the human race itself, are in imminent danger from a runaway virus– one that, cannot be stopped except for adding a serving of broccoli to all of our daily diets. Would we then think that if our government mandated that we should eat broccoli everyday in order to prevent massive human death, that such a demand would deny us our rights–especially since refusing to eat broccoli would enable us, as individuals, to continue spreading the virus to others? Although this might be a science fiction type scenario, I believe it illustrates a case where the large scale success of an important health care measure, if mandated and applied to us all, is the only way to provide for the “general welfare” of us all! Currently it is estimated that 40,000 Americans may die each year because of lacking sufficient health care coverage!!
It would have been great if the court had commented on the potential benefits from the reforms, and recognized that our Governments–local, State, and Federal, have always dished out mandates in one form or another–failure to pay one’s income taxes in general, is illegal–even if we disagree with the ways that our money money will be spent. It should also be noted that when social security and medicare benefits are withheld from out taxes, This is nothing more than a mandatory and forced investment for workers to make, concerning our security and our access to health care after retirement. It may be forced but it works–at least if you ask millions of American citizens!
So, Kudos to Roberts for sticking to his viewpoint! Not only did he help to restore some of the tarnished image concerning the partisan make-up of The Court, but he helped implement a measure which holds promise for many lower income Americans and others, who can now reap the benefits of a bill which, they have previously been systematically brainwashed, and misinformed about. If the bill were not given a fair chance, we would never really know how good it can be! It will require plenty of tweaks and adjustments, but at least it is a good start!
It was probably a law clerk, whose job ended with the end of the court’s 2011-2012 term.
Kind of hard to fire someone unemployed.
BTW, this was the way that Bob Woodward was able to research “The Brethren” which remains one of the best looks “inside” the secretive court written to date.