#ObamaCare — Sources: the Chief Justice changed his mind

Posted by: Phineas on July 1, 2012 at 4:55 pm

**Posted by Phineas

There had been speculation in the wake of last week’s surprising Supreme Court ruling in Sebelius (the ObamaCare case) that the joint, scathing dissent had originally been the majority opinion, but that Chief Justice Roberts then changed his mind and upheld the statute by effectively rewriting it as a tax.

Now, apparently, we have some confirmation. At CBS News, Jan Crawford learns from two anonymous sources how the debates in chambers went down. Here’s a key section:

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.

Roberts was less clear on whether that also meant the rest of the law must fall, the source said. The other four conservatives believed that the mandate could not be lopped off from the rest of the law and that, since one key part was unconstitutional, the entire law must be struck down.

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. 

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.

Then began a long process in which the conservative justices –especially Kennedy, who saw this as a liberty and federalism issue– tried to bring Roberts back to their side. It didn’t work, so, when the Chief Justice filed his opinion on June 1st, the four dissenters wrote their opinion jointly and, in an unusual move, didn’t join Roberts in concurring with those parst of his decision, relating to the Commerce and Necessary and Proper clauses, with which they agreed. Instead, their dissent was wholly separate and did not mention Roberts’ opinion at all, indicating they wanted no part of it and, perhaps, contempt for what he had done.

Read the whole thing; it’s fascinating. Also have a look at this related piece by Avik Roy.

If it’s true that Roberts responded to pressure from the liberal media, then that indicates a sad lack of spine on his part, but not something unheard of among conservative justices in DC. When a conservative moves toward the liberal end of the scale, it’s called “growing in office” and they’re praised for it. (Never when a justice goes the other way, though.) And it’s happened a few times. Perhaps they’re afraid of being cut off from the best cocktail parties.

In fairness, though, Crawford cites other sources who deny social or political pressure influenced Roberts’ thinking:

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.

If Roberts was afraid to strike down the mandate because of a lack of precedent, then he’s dead wrong. I refer the reader to United States v. Butler and Schechter Poultry, both of which struck down crucial pillars of the New Deal. In the latter case, Schechter undid the National Industrial Recovery Act, which was at least as sweeping a power grab as ObamaCare. While neither dealt with a mandate, they still provide precedents for striking down major legislation.

And on general constitutional grounds, our national charter specifically envisions a government of defined, limited, and divided powers, with those not assigned to the federal government being reserved to the states and the people. On that alone, the mandate was such a violation of original intent and such an intrusion into those areas left to the states and the people that there was no reason not to overturn it.

What should have happened? Roberts should have stuck with his original opinion, joined the majority in overturning the whole law, and then sent it back to Congress with a note saying “If you want to do this, it has to be as a tax.”

It was the only way to properly handle this case.

If the thrust of this and other articles is true, that Roberts was concerned about the Court overreaching and thereby damaging its reputation, then he achieved the opposite. This display of weakness that lead him to abuse the “fairly possible” doctrine of jurisprudence and to then legislate from the bench to rewrite the mandate as a tax damages the Court’s reputation, as well as that of the Chief Justice, himself.

EDIT: Rewrote the final paragraph a bit to be more clear.

UPDATE: Both Moe Lane and Jazz Shaw caution against putting too much stock into anonymous sources, particularly when the story seems to be aimed at demoralizing conservatives. It’s a good thing to keep in mind.

(Crossposted at Public Secrets)

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5 Responses to “#ObamaCare — Sources: the Chief Justice changed his mind”


  1. Roberts pulled a classic “Pearl Harbor job” on Obhammud. By ruling the bill would be paid for by a tax he made him the owner of the largest tax increase in the history of the nation. He is saddled with it and cannot get out from underneath it. The trademark smug demeanor displayed by Obhammud in announcing the bill had withstood the court challenge is but a fleeting vapor. Like the old saying goes, “What will make you laugh will make you cry”. Roberts was playing chess while everyone else was playing checkers. Brilliant!

  2. Carlos says:

    I believe Roberts was dead wrong with his decision, but that’s history now.

    What he was doing, I am convinced now, was playing a game, and Drew pretty well nails it.

    That said, though, Roberts should be well-enough grounded in the law to know that, when “interpreting” the Constitution, there is no room for games. His decision will have long-lasting, dramatic and severe ramifications that Roberts, in typical liberal mode, didn’t have a clue about. What he needed to do was go back to the Constitution instead of his liberal law books, reread the 10th Amendment and the entire original Constitution as modified by amendments, and decide whether the federal government has any business in being in business to begin with.

    And one more thing. Several talking heads this weekend used the phrase “The fact of the matter is…”

    I am convinced that at least 90% of the time when people use that phrase it is a red flag that either they don’t know what they’re talking about, they’re blowing smoke, or both.

  3. Zippy says:

    Forgive me my language but he’s an asshole.

  4. Jim McDonald says:

    I’ve read that Roberts have started taking medication to control epilepsy? If that is true, should he even be on the bench?

  5. Carlos says:

    Just a quick note, Jim. Your attitude about “epilepsy” (now generally known as “seizure disorder) seems terribly 18th century, when people hid their embarrassment by hiding their epileptics.

    I’ve a child who’s now in his 30s, has had a seizure disorder since he was 5, and has had two brain tumors removed. He functions terribly well for a self-taught (very little college education) licensed engineer, and hasn’t embarrassed his boss once with a seizure because his boss knows what they are all about…

    That said, I can think of at least three other reasons Roberts should either step down (after the next president is sworn in) or be impeached, but as luck would have it, legislating from the bench is not an impeachable offense. Just ask any judge (while they whisper thanks to whatever their higher power is, a toad or somesuch).