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Posted by on Jul 2, 2012 in Guest Contributor, Politics, Society | 0 comments

John Roberts and the Reverse Judge Wilson Coda

There’s a movie you need to see. It’ll be on Turner Classic Movies this Fourth of July at 5 PM (EDT, 2 PM PDT), and is the film adaptation of the stage musical “1776.”

Independence Hall, Philadelphia
(photo by author)

In it, you will learn WHY today is actually Independence Day. John Adams presciently thought this was the day that would be celebrated with “fireworks, pomp, and pageantry.” This was the day that independence was voted. July 4 was the day, after three days of debate, that the Declaration of Independence was adopted. Either way, I celebrate both. Here’s what an Epinions review says about the musical:

Pros: Superb performances, brilliant lyrics, true-to-life history, amazing music… everything!
Cons: One weak song… otherwise, nothing
The Bottom Line: Watch it now. Then get your friends to watch it. Then find a stranger to watch it. Good.

Now, before the fold, spoiler alert, and very DEFINITE spoiler alert. DO NOT read further if you haven’t seen the movie/play, or else you’ll  rob yourself of a truly wonderful, cathartic experience that will renew your faith in democracy. Otherwise, if you have seen it, else don’t give a damn, read on. You’ve been most sincerely warned. 

If you recall the musical, you’ll remember Judge Wilson, the “meetoo” vote who stands in Antagonist John Dickinson’s shadow. The second vote in the three-vote Pennsylvania delegation, rendering Benjamin Franklin’s vote useless. All he can do is second another colony’s motion. Here’s the essence of Judge Wilson:

Dr. Benjamin Franklin: Tell me, Mr. Wilson, when you were a judge, how in hell did you ever make a decision?
James Wilson: The decisions I made were based on legality and precedent. But there is no legality here, and certainly no precedent.
Dr. Benjamin Franklin: [losing his temper] Because, it’s a new idea, you CLOT! We’ll be making our own precedent!

That certainly isn’t John Roberts’ problem, of course. Roberts sees himself as an historical figure, where Judge Wilson says that there’s nothing he fears more than the “resp0nsibility” that comes of being a remembered figure.

Restored version DVD

I had not intended to write this, although it was my first thought after reading the Health Care decision (GOP v. Sanity, Round 17692). I was not going to write it at all, because it seemed to smack of too much armchair psychology. But since the revelation, this morning by Jan Crawford of CBS News, I now feel it’s appropriate.

Roberts switched views to uphold health care law
By Jan Crawford
(CBS News) 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.


The Atlanta-based federal appeals court said Congress didn’t have that kind of expansive power, and it struck down the mandate as unconstitutional.

On this point – Congress’ commerce power – Roberts agreed. In the Court’s private conference immediately after the arguments, he was aligned with the four conservatives to strike down the mandate…. Because Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the Court’s historic decision. He kept it for himself.

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…. 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.


To strike down the mandate as exceeding the Commerce Clause, the Court would have to craft a new theory, which could have opened it up to criticism that it reached out to declare the President’ health care law unconstitutional.

Roberts was willing to draw that line, but in a way that decided future cases, and not the massive health care case….

Chief Justice John Roberts

While I am not a psychologist, knowing what makes people tick is my profession, and the writer’s discipline of close observation is what leads me to the conclusions that follow. So, the blogosphere is screaming, WHY DID ROBERTS CHANGE HIS VOTE????

The Real Deal: The Second Continental Congress’ chambers
where the Declaration (and the Constitution) were forged
photograph by author

John Dickinson: Mr. Jefferson, Mr. Lee, Mr. Hopkins, Dr. Franklin, why have you joined this… incendiary little man, this BOSTON radical? This demagogue, this MADMAN?
John Adams: Are you calling me a madman, you, you… you FRIBBLE!
Dr. Benjamin Franklin: Easy, John.
John Adams: You cool, considerate men. You hang to the rear on every issue so that if we should go under, you’ll still remain afloat!
John Dickinson: Are you calling me a coward?
John Adams: Yes… coward!
John Dickinson: Madman!
John Adams: Landlord!
John Dickinson: LAWYER!
[a brawl breaks out]

Which may well mirror what happened in chambers this spring. We will never ultimately know.

I will tell you why: John Roberts pulled a reverse Judge Wilson. Roberts is, still, in many ways like Judge Wilson:

John Dickinson: Mr. President, Pennsylvania moves, as always, that the question of independence be postponed. Indefinitely.
James Wilson: [standing up] I second the motion.
John Hancock: Judge Wilson, in your eagerness to be loved, you seem to have forgotten that Pennsylvania cannot second its own motion!

The 5-4 block of the Alter Boys has been, until now, nearly solid in controversial cases. They have a definite agenda, as did Dickinson, to reconcile with England. The CBS story notes:

Is this guy wound tight, or what?

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.

And John Roberts, as Chief Justice in either 5-4 decision has the perquisite of assigning the opinion. So, whether he voted with the Alter Boys or what are called “The liberals” he had the option of assigning the case to anyone he chose. He chose himself.

Now, back to 1776:

Little noted by tourists , this is where the First Continental Congress
met in Carpenter’s Hall, Philadelphia, a short distance down the street
photo by author

You remember the denouement: Slowly, with all the politicking, Adams and Franklin have overcome all the colonies objections and come to the verge of unanimity. Franklin has arranged for Pennsylvania to pass, meaning it will be the final  colony to vote. Dickinson rises with a sneering grin on his face. “Mr. President [of Congress], Pennsylvania votes …”

And Franklin stops him. “Mr. President, I ask that the delegation be polled. It’s a proper request.”

President of Congress John Hancock agrees. Mr. Dickinson?


Dr. Franklin?


And then Judge Wilson. James Wilson hesitates.

John Dickinson turns to him, puzzled. “James!”

James Wilson (r.) in John Dickinson’s shadow

And Judge Wilson says, “I know what you want me to do, John.”

James Wilson: I’m different from you, John. I’m different from most of the men here. I don’t want to be remembered.

Wilson (a lot of nice drama here) slowly comes to the realization of where he stands. Dickinson responds with scorn. Is this how nations are formed, then? By a non-entity seeking the anonymity he so richly deserves?

And Judge Wilson finally realizes the crux of it.

If I vote with you, John, he says, I’ll be the man who stopped American independence. If I vote with them, no one will ever remember the name of James Wilson.

And Judge Wilson votes “aye” on July 2, 1776. The rest, as they say, is American History.

And that is what happened to John Roberts. He is not the shy man seeking anonymity, of course, but the conclusion was the same:

If I vote with you, Alter Boys, I’ll be the one remembered for it. They’ll say John Roberts was the man who denied health care to America.

And he, like Judge Wilson, didn’t BARGAIN for that.

“Ah, then be careful not to dine with John Adams.
Between the fish and the soufflé, you’ll find yourself hanging
from an English rope. Your servant, sir.” – John Dickinson

Which is my answer to the blogospheric question, Why did John Roberts switch his vote and then write a bizarrely schizophrenic opinion?

As for 1776, the movie adaptation of the 1969 Tony Award-winning Best Musical, “According to The Columbia Companion to American History on Film, historical [i]naccuracies pervade 1776, though few are very troubling.” (Wikipedia). This is called ‘dramatic license’ which, in its best flowering, preserves truth while shuffling some facts around for dramatic effect. As a WHOLE, the musical is faithful to what happened in Philadelphia two centuries ago, as the Quill Heard ‘Round The World continues to inspire men of all nations. Here’s the Wikipedia synopsis of that fateful scene, which, I think, parallels what happened in the Supreme Court this spring:

Pennsylvania’s vote, which is the last vote needed to obtain the required unanimous approval, is called again, Dickinson declares that “Pennsylvania votes…”, only to be stopped by Franklin who asks Hancock to poll the members of the delegation individually. Franklin votes “yea” and Dickinson “nay”, leaving the swing vote to Wilson, who normally adheres to Dickinson. Seeing his hesitancy, Dickinson tries to entice him: “James, you’re keeping everybody waiting … the issue is clear.” Franklin remarks that “most issues are clear when someone else has to decide them”, and Adams mercilessly adds that “it would be a pity for a man [Wilson] who has handed down hundreds of wise decisions from the bench to be remembered for the one unwise decision he made in Congress.” Wilson doesn’t want to be remembered as “the man who prevented American independence” and votes “yea”. The motion is passed.

Hancock suggests that no man be allowed to sit in Congress without affixing his signature to the Declaration. Dickinson announces that he cannot in good conscience sign such a document, and still hopes for reconciliation with England. However, he resolves to join the army to fight for and defend the new nation. Adams leads the Congress in a salute to Dickinson as he leaves the chamber.

No joke. As of 2010, justice is dispensed to the people only
via the rear entrance. (Make up your own joke)

Justice Anthony Kennedy, in this case, playing John Dickinson.

Or, as Franklin’s character says:

Dr. Benjamin Franklin: Revolutions come into this world like bastard children, Mr. Dickinson – half improvised and half compromised.

Happy Independence Day(s)!

Now, go set your television to watch or record 1776, which was censored by Jack Warner at Richard Nixon’s request.


PLAYING ON TCM: 04-Jul-12 05:00 PM [EDT]
Cast: William Daniels, Ken Howard, Blythe Danner.
Dir: Peter H. Hunt.
Details: Musical | 165 mins.

Won the Tony on Broadway ion 1969, then at Nixon’s request the film was censored to remove the “Cool Conservative Men” section by Jack Warner. The original negative was found in the Lyons, Kansas salt mines a few years ago, and it has been restored, making it even better than the bowlderized version (the first version I ever saw) was. Some scenes cut for time have been restored, and it is much richer, if you haven’t seen the NEW, “director’s cut” version, which TCM ran last year and I am sure will run this year again.

It will restore your faith in the miracle of democracy. I watch it every year, and always emerge hopeful. This year, it’s PARTICULARLY appropriate.

And that’s how John Roberts pulled a Reverse-Judge-Wilson on Health Care.


NOTE: “Coda” since this follows:

Which explain the Commerce Clause and why it’s important here.


A writer, published author, novelist, literary critic and political observer for a quarter of a quarter-century more than a quarter-century, Hart Williams has lived in the American West for his entire life. Having grown up in Wyoming, Kansas and New Mexico, a survivor of Texas and a veteran of Hollywood, Mr. Williams currently lives in Oregon, along with an astonishing amount of pollen. He has a lively blog His Vorpal Sword. This is cross-posted from his blog