Avik Roy, Contributor
7/01/2012 @ 1:01PM |9,630 views
The Inside Story on How Roberts Changed His Supreme Court Vote on Obamacare
The Obamacare Supreme Court ruling seemed strange. Chief Justice John Roberts' reasoning was incoherent. The conservative's dissent read like it was originally meant to be a majority opinion. Now, we know why. According to Jan Crawford of CBS News, John Roberts switched sides in May, withstanding a "one-month campaign" from his conservative colleagues to change his mind.
"I am told by two sources with specific knowledge of the court's deliberations that Roberts initially sided with the conservatives in this case and was prepared to strike down…the individual mandate," said Crawford on CBS' Face the Nation. "But Roberts, I'm told by my sources, changed his views, deciding to instead join with the liberals. There was a one-month campaign to bring Roberts back into the conservative fold, led, ironically, by Anthony Kennedy."
That explains what I was hearing a few weeks ago. I reported, from third-hand sources, that the conservatives were furiously lobbying each other on the issue of severability of the individual mandate from the rest of Obamacare. It turns out that this reporting was accurate, but that Roberts then changed his mind and joined the liberals. Subsequently, the conservatives started lobbying Roberts to stay with them on the law's unconstitutionality.
The irony is that Roberts didn't have to rewrite the statute in order to issue a judicially minimalist opinion. He could have done what the Obama administration asked him to do: if the individual mandate is unconstitutional under the Commerce Clause, also sever the law's guaranteed-issue and community rating provisions, and leave the rest of the law intact.
Instead, he invented out of whole cloth a new definition of taxation that contravenes long-standing precedent. He added hundreds of billions of dollars to the federal deficit, by way of his Medicaid ruling. And he forever tarnished his legacy as a Justice, and his promise to the nation that he would serve as an umpire, and "remember that it's my job to call balls and strikes, and not to pitch or bat."
A number of my Federalist Society friends are describing Roberts' opinion as a kind of victory for constitutional conservatives, because Roberts sided with Kennedy et al. on the limits of the Commerce Clause and the 10th Amendment. But I look at it in the opposite way. It is the Federalist Society that has failed, for the umpteenth time, to help Republican Presidents appoint strict constructionists to the Supreme Court. It's time for conservatives to think hard about this problem, and make sure they don't make this mistake again.
And also to ensure that Obamacare is repealed by Congress in 2013.
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UPDATE 1: Crawford is out with a more detailed report. Kennedy was "relentless" in trying to bring Roberts back aboard the conservative life-raft:
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.
As I noted above, rumors of a disturbance in the Force made their way around elite legal circles. But it turns out my original reporting was right after all:
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.
After the historic oral arguments in March, the two knowledgeable sources said, Roberts and the four conservatives were poised to strike down at least the individual mandate. There were other issues being argued – severability and the Medicaid extension – but the mandate was the ballgame…
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.
Roberts caved into left-wing media pressure to uphold the law:
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.
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.
Once Roberts decided to cave, he started lobbying–some said "arm-twisting"—Anthony Kennedy to join his opinion:
Roberts then engaged in his own lobbying effort – trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as "arm-twisting."
Even in Roberts' opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy's vote. Roberts even used some of the same language that Kennedy used during oral arguments.
But Kennedy was in fact one of the Justices most committed to the unconstitutionality of the individual mandate—which is why I believed that there was a 5-4 majority to overturn it:
Close associates of Kennedy never thought he would waver in the case once he recognized the federal mandate as an encroachment on individual liberty (points Kennedy later would make in his sections of the joint dissent).
In fact, Kennedy was the most forceful and engaged of all the conservatives in trying to persuade Roberts to stand firm to strike down the mandate. Two sources confirm that he didn't give up until the very end.
But Roberts didn't focus entirely on Kennedy, the sources said. He tried to persuade the conservatives to join at least the parts of his opinion with which they agreed, such as his Commerce Clause analysis…
But despite Roberts' strong language on the Commerce Clause, the conservatives would have none of it, the two sources said, even though there was no significant difference in their reasoning on that issue.
This all played out in the first half of June. Kennedy and Scalia wrote the bulk of the conservative dissent, and that dissent was not originally written as a majority opinion. It's that the conservative Justices held Roberts' opinion in such contempt that they did not want to dignify it with a response:
The two sources say suggestions that parts of the dissent were originally Roberts' actual majority decision for the Court are inaccurate, and that the dissent was a true joint effort.
The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.
The language in the dissent was sweeping, arguing the Court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia – and then, there is Justice Kennedy.
"The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril," the dissent said. "Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."
UPDATE 2: The Volokh Conspiracy lends some insight into the Crawford report. Stewart Baker notes that Vermont Sen. Patrick Leahy (D.), Chairman of the Senate Judiciary Committee, may have been aware that Roberts was the swing vote, because he gave a notably partisan speech on the Senate Floor directed at Roberts—and not mentioning Kennedy—in mid-May. "I have not seen much devoted to the Chief Justice's role," warned Leahy. "Why," asks Baker, "would the chair of the Judiciary Committee risk the appearance of trying to harshly strongarm the Court when his remarks wouldn't make the slightest difference?" Could Leahy have had inside information?
Orin Kerr, also at Volokh, makes a persuasive case that Crawford's sources are not clerks, but actual Supreme Court Justices. "First, law clerks don't generally chat with Jan Crawford, while several of the Justices have done so publicly. Crawford appears to have particularly good relations with several of the court's conservative Justices. Here's Crawford interviewing Justice Thomas, and here's Crawford interviewing Justice Scalia. Second, a clerk who leaked this and is identified has likely made a career-ending move."
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Matthew Herper , Forbes StaffA great piece of reporting on Jan Crawford's part, but I think the assertion that it was pressure from the press that led Roberts to change his mind is unsupported in the piece, even by her anonymous sources. It comes close to "he would do this" not "he told one of my sources that was his reasoning."
I don't disagree that the press or comments from the left probably influenced Roberts, but even in the context of her piece Crawford doesn't prove this is true.
Avik Roy , Contributor
Roberts would never admit that he caved to media pressure, so "proof" of the kind you require is impossible. But the circumstantial evidence is pretty strong: (1) incoherently reasoned opinion; (2) late flip-flop; (3) Roberts' stated interest in the public reputation of the Court.
Matthew Herper , Forbes Staff
I agree on (2) and (3), without commenting on (1), but that's all circumstantial evidence in an article that's about her sources in the court.
Even a second-hand comment that other judges viewed Roberts' decision as being motivated by the press would have made this claim much stronger. I'm quite comfortable not knowing what was in Roberts' mind; I'm not comfortable trying to read it based on circumstance.
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