Sunday, July 01, 2012

More Evidence Justice Roberts Switched His Vote On ObamaCare Under Pressure

I speculated before on these pages that Chief Justice John Roberts likely changed his vote on ObamaCare at the last minute under pressure. Apparently,according to Jan Crawford reporting on CBS Face the Nation that's exactly how it went down:

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 heart of this law, the so-called individual mandate, of course, that requires all Americans to buy insurance or pay a penalty. but Roberts, I’m told by my sources, changed his views deciding to instead join with the liberals.

He withstood–I’m told by my sources–a month-long desperate campaign by the conservative justices to bring him back to the fold and that campaign was led, ironically, by Justice Anthony Kennedy and why that’s ironic is because it was Justice Kennedy that conservatives feared would be the one most effort, of course, was unsuccessful, Roberts didn’t budge, the conservatives wrote that astonishing joint dissent united in opposition and Roberts wrote the majority opinion with the four liberals to uphold the President’s signature achievement.

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.

More from CBS News:

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. {....}

The majority decisions were due on June 1, and the dissenters set about writing a response, due on June 15. The sources say they divided up parts of the opinion, with Kennedy and Scalia doing the bulk of the writing.

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."

If Chief Justice Roberts deliberately changed his vote in response to media and political pressure that goes pretty much over the limits for any judge in any situation. It would certainly explain why the four justices in the minority,especially Scalia and Kennedy were so visibly enraged over this, an almost unprecedented display in the Court's normally collegial atmosphere.

There's a precedent for this kind of cravenness in history. After the Supreme Court and Chief Justice Charles Evans Hughes struck down a number of the New Deal's more questionable programs as unconstitutional, President Franklin D. Roosevelt threatened the High Court directly, referring to them as 'nine old men' who were standing in the way of progress. After winning a a huge landslide in the 1936 elections, Roosevelt initiated a scheme he was going to run through a Democrat-dominated Congress to change the number of Supreme Court Justices to 15 - which he, Roosevelt would appoint.

In response,Hughes and Justice Owen J. Roberts began to switch their positions. They would vote to uphold much of the rest of the New Deal programs, the beginning of America as welfare state.

The ludicrous part is that Hughes and Roberts' cave in at the expense of the Constitution was almost certainly unnecessary. Roosevelt's court packing scheme was unpopular even in the 1936 Congress and would likely not have passed, and especially not after the 1938 midterms, which saw a different political mix in congress.

If Chief Justice John Roberts changed his vote to gut the Constitution's limits on Federal power just to deflect criticism from himself and the Court and get some peace and quiet during a heated presidential election year, he made a huge error, and one that will sully his personal reputation for some time.

This one may go down in the history of American jurisprudence with the Dredd Scott decision.

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