CBS News is reporting that Chief Justice John Roberts switched his position on the Court’s Affordable Health Care vote, after initially siding with conservatives.
The reason for the switch? Roberts was feeling the pressure from liberal publications and other experts who saw striking down Obamacare as a blow to the legitimacy of the Court:
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.
The case raised entirely new issues of power. Never before had Congress tried to force Americans to buy a private product; as a result, never before had the Court ruled Congress lacked that power. It was completely uncharted waters.
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.
Moreover, there are passages in Roberts’ opinion that are consistent with his views that unelected judges have assumed too much power over American life, and that courts generally should take a back seat to elected officials, who are closer to the people and can be voted out of office if the people don’t like what they’re doing.
So yes, Roberts caved not on the basis of law, but on political grounds; i.e., he didn’t want to be known as the justice who struck down Obamacare — that mean old conservative.
Read the linked article for the reaction from conservative justices. The contempt in which they hold Roberts for what I’m sure they see as a betrayal is amazing.
Join the conversation as a VIP Member