Sunday, July 01, 2012

Roberts did flip on his decision despite Kennedy's lobbying

Jan Crawford, who has very good sources within the Court, reports that John Roberts did indeed vote to strike down the Affordable Care Act, but then changed his mind. Anthony Kennedy was the lead justice in trying to change Roberts' mind.
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.

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.

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.
If it is true that Chief Justice Roberts was truly wary of public opinion, that is very worrisome. The whole reason why we have justices with lifetime tenure is to remove them from political pressure. And what will happen when controversial cases such as the affirmative action and Voting Rights case hit the Court in the upcoming session?. Does he truly think that liberals would cut him some slack if the Court struck down those programs? And should decisions in one case be made based on trying to win support for future decisions? That doesn't sound like the reasoning a minimalist like John Roberts is supposed to be would endorse.

I would like to think that Roberts changed his view because he truly believed that this was the correct decision. I believe that he truly believes that getting rid of Obamacare should be done through the political process and not through the courts. I think more of Roberts than that he would cave to supposed liberal pressure. They're not going to love any future decision any more because of this decision. They're not going to like Citizens United any more now than they did before this.

I think John Hinderaker did a good job defending Roberts from playing politics with his decision.
Many conservatives have questioned Justice Roberts’ motives in the wake of his surprising concurrence with the Court’s liberals. This strikes me as entirely unfair. Roberts is a brilliant legal technician, and in my opinion those talents are displayed in his majority opinion. What reason is there to think that he does not believe what he writes? None that I can see. I disagree with Justice Ginsburg when she votes wrong–in my opinion–on virtually every controversial case. But I don’t question her motives; I assume that she sincerely believes that her view is the correct one. I think that minimal respect should be accorded to all of the justices unless there is strong evidence to the contrary. Here, as far as I have seen, the theory seems to be that any conservative judge would vote against Obamacare, and therefore Roberts must have had some ulterior motive. Such reasoning does a disservice not just to Justice Roberts, but to conservatives.

Moreover, if Roberts was playing the politician and trying to spare himself from criticism, he chose an odd way of doing so. The course he took–voting with the Democrats on the taxing power but not the Commerce Clause, so that the decision will go down in history as uniquely his–will bring far more calumny down on his head than if he had either voted with his fellow conservatives or joined with the liberals on the Commerce Clause and let Ginsburg write the opinion. One can speculate that Roberts had in mind some consideration of his place (or the Court’s place) in history, but why? It is a reasonable assumption that Roberts, like any other judge, thinks that his place in history will best be secured by his Court’s making sound decisions. I see no reason to assume that Justice Roberts voted and wrote as he did for any reason other than that he thought he was correctly applying the relevant legal principles to the case before him.
I prefer, like John Hinderaker, to give Roberts the benefit of the doubt that he ruled the way he did because he believed that was the right decision. I don't like his choice and wish that Anthony Kennedy had been able convince him, but it seems very slighting to say that Roberts made his decision because he "caved" or worried about the Court's public image. I still think more of John Roberts to believe that.