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 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.
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11 Responses
The one silver lining in this is that Kennedy may be moved to become more “conservative” in future cases.
And as to those who say that Roberts’ opinion upholding PPACA was “judicial conservatism” because he didn’t strike the law down — the conservative position is sometimes to push the case away (e.g., the Zivotofsky case). Once the case is decided on the merits, it is never conservative to blindly uphold a statute.
Roberts’ opinion referred to the Ayotte v. Planned Parenthood case as justification for trying to find a way to uphold the law. But that case dealt with a State statute, not a Federal law. The difference is that — as Roberts himself acknowledged — the Congress has only the enumerated (and implied) powers.
Roberts was quite clever. He stopped the expansion of the Commerce Clause which until last week was threatening to give the Federal government control over every aspect of economic life. He seriously cut back on unfunded Federal mandates (with a commanding 7-2 majority). By defining individual mandate as a “tax” he gave Obama a political hot potato, and made repeals or amendment of Obamacare something that can be done under reconcilliation on Jan. 21 (if the Republicans win a simple majority in both houses and the Presidence – reconcilliation means no fillibuster or 60 seat supermajority in the Senate). He might also have found a way to restrict abortion while ignoring the privacy and personal autonomy issues (a tax on abortions, perhaps with the proceeds dedicated to subsidized pre-natal care?).
Roberts is brilliant. He managed to make Obama and friends smile while stabbing them in the back.
akuperma,
Don’t kid yourself. Roberts may not have widened the Commerce Clause hole in the ceiling. Now we have two holes in the ceiling! Yay!
I think before we accuse his of being brilliant, we need to wait till HE himself talks about it in a book that he will hopefully write one day.
One man’s opinion: Somebody from the Obama administration “got to him,” and made him an “offer he couldn’t refuse!”
to #3:
Roberts is so clever that he gave the Federal Government virtually unrestricted power to tax us. Now the Feds can demand that a person buy a product or service and THEN tax those who don’t. How, exactly, does this constitute stabbing Obama in the back? If anything, he stabbed all of US in the back.
If they can pick your pocket, why can’t they give you something for it?
Wow wee…all this makes me tearfully nostalgic for when my adult children were young..It’s “Opposites Day” – I can’t wait for part two, when you have law school dropouts hold forth on Torah!
Yussel, what taxing power did this decision give Congress that it didn’t have (lechol hade’os) before? Everybody agreed that if Congress had implemented the mandate as a tax it would have been valid; the only question is whether it had actually done so.
with this supreme court apoproval we have just elected Romny President of US