CBS News describes how John Roberts changed his mind on Obamacare. According to the story he was initially against it. Then through a process that CBS’s sources cannot explain, the Chief Justice abruptly changed his mind. It is an account that raises more questions than it answers.
(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.
“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 CBS article suggests that Roberts may have been influenced by newspaper reports suggesting that if he struck down the law, he would damage the Court, as well as his own reputation. “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.
So to the question: why did Roberts change his mind the apparent answer is that ABC’s sources don’t know. But pundits, no less than astronomers are always eager to find the unseen source of an action. Having observed an effect, they want to know the cause. This was famously the case with Planet X, and the search for it led to the discovery of Pluto.
Following the discovery of the planet Neptune in 1846, there was considerable speculation that another planet might exist beyond its orbit. The search began in the mid-19th century and culminated at the start of the 20th with Percival Lowell’s quest for Planet X. Lowell proposed the Planet X hypothesis to explain apparent discrepancies in the orbits of the gas giants, particularly Uranus and Neptune, speculating that the gravity of a large unseen ninth planet could have perturbed Uranus enough to account for the irregularities.
In the event Pluto was not Planet X. It was too small to account for the perturbations. Whatever was causing the gas giants to veer, it was not tiny Pluto. “Today, the astronomical community widely agrees that Planet X, as originally envisioned, does not exist, but the concept of Planet X has been revived by a number of astronomers to explain other anomalies observed in the outer Solar System.”
The mystery, like the actual cause of Robert’s change of heart, still awaits a definitive explanation. It may lie in a desire to put any future limitation of Congressional action on a sound footing. But for now, he did not want to be seen as meddling in politics. “Regardless of his thinking, it was clear to the conservatives that Roberts wanted the Court out of the red-hot dispute.”
The least convincing aspect of the CBS narrative is that Roberts could have been driven to avoid this controversy solely by reading the newspapers or listening to media accounts suggesting that the court would lose its legitimacy or that his reputation would suffer. Did those articles actually carry so much weight? Was the New York Times “Planet X”? An object so massive it was capable of steering the gas giants from the computed orbits without its massive bulk being seen? Or is there something else out there which the media telescopes have not discovered?
It’s is necessary of course to avoid the “fallacy of a single cause”, to believe that every event — such as Robert’s change of heart — is necessarily attributable to a single or major influence. An event might be the outcome of a dozen disparate influences. In that case, perhaps not even Justice Roberts knows exactly why he acted as he did, only that he did.
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