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CBS: Roberts Switched Vote On Obama-Care

From CBS News:

Roberts switched views to uphold health care law

By Jan Crawford
July 1, 2012 1:29 PM

(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

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

[I]n 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

Opponents argued that the law exceeded Congress’ power under the Constitution, and an Atlanta-based federal appeals court agreed. The Atlanta-based federal appeals court said Congress didn’t have that kind of expansive power, and it struck down the mandate as unconstitutional.

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.

Roberts may have been hoping he could find a way to save the legislation.

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.

Which is peculiar. Why would it be hard for him to explain his change of view if he had a legitimate argument?

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.

Nonsense. All they needed to do to strike down the mandate as exceeding the Commerce Clause is to quote the Commerce Clause. CBS is trying to find excuses for Roberts here.

Roberts was willing to draw that line, but in a way that decided future cases, and not the massive health care case…

And, in fact, he ended up doing, neither, since he was not joined by anyone else in his ruling. So this is the worst kind of orbiter dicta.

Regardless of his thinking, it was clear to the conservatives that Roberts wanted the Court out of the red-hot dispute.

Then he should not be a Justice, let alone the Chief Justice.

Roberts had begun to focus on a different argument to uphold the law and the mandate’s penalty by defining it as a tax. That strained argument had received almost no attention in the lower courts, which had uniformly rejected it. It was seen as a long-shot by the law’s supporters

Largely because it is absurd. But also because it would make Obama-Care subject to the Anti-Tax Injunction Act, which is federal law. Which states that you cannot sue to stop a tax that has not yet been collected.

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."

After all, it was Kennedy who "betrayed" conservatives in 1992, when he flipped his vote in a key abortion case that could have overturned Roe v. Wade, the landmark decision that guaranteed a woman’s right to abortion

So Roberts thought he would help him betray conservatives again.

[However] 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

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 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."

Of course, we realize this doesn’t affect the Court’s ruling, one way or the other. But there is no denying the significance of this report, if it is accurate. For it would shows that the Supreme Court is now entirely susceptible to political pressure. If this report is true, then every ruling from Justice Roberts should be questioned as possibly being the result of political pressure.

In fact, if this report is accurate, this is the most appalling development in the 223 year history of the Supreme Court. Since it practically eviscerates the Supreme Court as the third leg of the Constitution’s ‘checks and balances.’

This article was posted by Steve Gilbert on Monday, July 2nd, 2012. Comments are currently closed.

9 Responses to “CBS: Roberts Switched Vote On Obama-Care”

  1. Chinnubie

    Checks-n-balances no longer exist in America. The government id free to turn America into a tyrannical dictatorship and I wouldn’t be surprised when Obama declares himself lifelong ruler!!

  2. Petronius

    An “appalling development.” Yes, just so. Steve’s analysis nails it.

    In his scramble to avoid one controversy, Chief Justice John “I-can-be-reached” Roberts has forever weakened the Court and the Constitution.

    Roberts is badly mistaken if he thinks he can placate them by this capitulation on Obama-Care.

    They have already jettisoned Roberts’ flimsy tax interpretation; it’s still a penalty, they say. Penalty has become the official line. None of Roberts’ reasoning remains, only the result. Only the result and his reputation for cowardice and shoddy legal shenanigans.

    So now there will be even greater tests forthcoming for the No-Good Nine, requiring more decisions and indecisions, new concessions, and more betrayals. New opportunities to call a ball a strike.

    The Catholic bishops cases will be coming soon enough. But there will be others, many others.

    And Roberts will be there to address them all : an easy tool, deferential, glad to be of use, politic, cautious, and meticulous; full of high sentence, but a bit obtuse –– almost, at times, the fool.

    “Eadem magistratuum vocabula.”

    From Tacitus’ account of Augustus’ solidification of power : “The magistrates enjoyed their traditional titles.”

    The forms of the Roman Republic were still preserved; the magistrates retained their ancient titles (eadem magistratuum vocabula). But the substance and the real seat of power had changed. Augustus had gathered all military and civil power into his own hands. There was still a Senate,but it held no real power. A revolution had overturned the old Republic, and although the forms remained unchanged, the government of Rome had become a de facto dictatorship.

    • Rusty Shackleford

      Indeed, and I am forced to wonder what the pay-off for Roberts was and from whence it came.

      He was either:

      Threatened
      Paid off
      coerced by other means.

      Gives credence to the notions that were speculated upon when D’oh-bama was making threatening remarks toward the court. That was just the part that we saw.

      Behind closed doors, he was no doubt having a gangster tantrum. “I want them DEAD….you tell them they better do as I say or they’re gonna be sleeping with fish!” in the style of the most tacky mob movie ever made.

      He mobilized his operatives to get to Roberts. Remember, this a**hole “president” has learned manipulation and very well. And…everyone has a price.

      What is sorely needed now is a player of Elliot Ness gravitas who cannot be bought, who knows right from wrong and who fears no one. Our nation has been subverted into a corrupt operative that feeds the greed of those in power.

      Some kind of deal was struck. Maybe they threatened his family. I wouldn’t be surprised, really.

      Maybe he has a thing for boys that no one knows about, yet but that some do and just never speak of. Everyone has skeletons and remember jug-ears went and had the divorce records of Jeri Ryan and husband unsealed to destroy him. It was successful.

      http://www.anncoulter.com/columns/2011-11-09.html

      They have something on Roberts. They have something on everyone who’s their enemy.

  3. GetBackJack

    If accurate …. I’m speechless.

  4. Democrats are running away from this countries biggest tax hike in American history:

    1. http://weaselzippers.us/2012/0.....us-ruling/

    2. http://www.youtube.com/watch?v=Wzs3aoRnl0E

    3. http://www.youtube.com/watch?v=rL7ak__MGyw

    4. Barack Obama evoking Jesus to sell us the more taxes while we are “broke”: http://www.youtube.com/watch?v=OCr7bP5pZ6I

    5. 20 New higher taxes that American citizens will “enjoy” now that Obamacare is constitutional:
    http://sweetness-light.com/arc.....gher-taxes

  5. canary

    This may follow suit of the last strange conservative Supreme Court Justice who screwed America and then stepped down to allow Obama to choose another liberal.

    Reasons Supreme Court Justice Roberts encamped with the liberal Justices, may be because he was
    black mailed.

    He’s handsome.
    He’s getting on in age
    Maybe having a mid-life crisis
    There’s that NYC brothel bizarre case being played out there

    Did the liberals slipped him a mickey and got him in an compromising position.

    Which Supreme Court Justices went jogging in a park at strange hours and got mugged? I think he was the one that never been married and very isolated life and screwed the conservatives before stepping down.

    He will be held to this greatest compromise far more than whatever stupid thing that may have happened that could have landed in a reality TV show or Tweet with Obama show.

  6. Anonymoose

    This is one of those things will be debating about until the end of time. What I don’t believe is that he thought this was the right thing to do for the good of the country. What I do think is one of two things:

    He voted this way because he felt he had to–whether in order to save his political skin, because of his reputation or worse is immaterial.

    Or he voted this way hoping the backlash would come back to haunt Obama—you wanted this, you got it. A dangerous gambit that will cause endless problems as the general public hasn’t seen the whole scope and effect of this law.

  7. AcornsRNutz

    Well they offered him fame and praise if he folded and ruination if he held firm. We see how that worked. Another guy in history made a similar move for esimilar reasons, and although one could sympathize with his delicate position, he holds a special place in Hell if Dante is to be believed. Roberts, you washed your hands and found no fault in this law, which was the slimy, political, self serving, gutless thing to do. We may not be talking about your immortal soul here, but Pilate wasn’t remembered as a good guy in the Bible no matter who he pleased at the time.

  8. AcornsRNutz

    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.

    This is the problem with so called constitutional law. Prior cases are the ONLY yardstick by which constitutionality is judged. Probably a good resource, but not nearly as useful as, say, the CONSTITUTION! But going by the word of the constitution would mean that even us rubes could figure out a law’s validity on a constitutional level. If we go off of years of conviluted and often grossly wrong cases and rulings, we need someone with some college booklearnin’ to figger this hard thinky stuff out for us.




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