“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. Today’s decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it.”
(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…
…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.
As Roberts explained in his opinion:
“The framers created a federal government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”
Regardless of his thinking, it was clear to the conservatives that Roberts wanted the Court out of the red-hot dispute…
…since the four conservatives agreed the mandate went beyond the commerce power, the Court now has five Justices who would constrain what Congress can do going forward – imposing significant limits on federal power.
The complete article is at CBS News.
H/T Jake Tapper
Related: The Volokh Conspiracy has related video from CBS’s “Face the Nation”. Also at the site, Did the Supreme Court’s Deliberations on Healthcare Leak?
If the assumptions underlying this story are true, then Chief Justice Roberts did precisely what a Justice of the Supreme Court is not supposed to do: allow political pressure to influence his legal reasoning. Ironically, his effort to appear impartial by siding with the left wing of the Court has severely damaged the reputation of the Court as an impartial arbiter.
And Jim Treacher commented:
A week ago, libs were terrified that the fate of the nation was in the hands of one unelected official.
Now they’re fine with it.
Update: Kennedy Comments on Health Law at Supreme Court [audio statements by Justice Kennedy, March 2012)
June 18 (Bloomberg) — By month’s end, the U.S. Supreme Court will determine the fate of President Barack Obama’s health-care law, designed to extend coverage to at least 30 million uninsured Americans. The decision may rest with Justice Anthony Kennedy, the court’s swing vote since Justice Sandra Day O’Connor retired in 2006. This report contains excerpts of Kennedy’s comments during the oral arguments of the health-care cases, including Department of Health and Human Services v. Florida, National Federation of Independent Business v. Sebelius, and Florida v. Department of Health and Human Services. (Audio via supremecourt.gov. Source: Bloomberg)
Update 2: Reason Magazine asks, Did Liberal Pressure Bully John Roberts Into Voting for ObamaCare?
…But if the story and its speculation about the reasons behind Roberts’ switch are true, then the implications are downright shocking: Essentially, it would mean that the Chief Justice of the Supreme Court was bullied into changing his position, and the ultimate outcome, on perhaps the most consequential Supreme Court case in the last several decades, because prominent Democrats and liberals threatened to throw a temper tantrum if he didn’t vote the way they wanted.
…According to the United States Constitution, all tax bills must originate in the House of Representatives. This law originated in the Senate, because at the time the Democrats were selling it as a purchase – not a tax. Since the Supreme Court has ruled that the law is indeed based on a tax increase, it would have had to be initiated as a bill in the House of Representatives.
Consequently, the Patient Protection and Affordable Care Law is unconstitutional on a different criteria than the ones considered by the Supreme Court in this latest landmark decision. By calling the individual mandate unconstitutional but allowing the law as a federal program to be funded by new taxes, Justice Roberts essentially nullified the law…