Internal USSC Machinations: Roberts a Late Switch

Radio Refugee · Jul 1, 2012

I'm not too familiar with the author here but....she's got some history as a court correspondent and it has an internal consistency. There are no quoted sources as one would expect. Read it and weep.

July 1, 2012 1:29 PM
Roberts switched views to uphold health care law
By Jan Crawford
(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.

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.

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.

It required individuals to buy insurance or pay a penalty. Congress had never before in the history of the nation ordered Americans to buy a product from a private company as part of its broad powers to regulate commerce. 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.

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.
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Much more...

Lil Mike · Jul 1, 2012

Jan Crawford has been a legal correspondent for quite a while. She used to work for PBS and now works for CBS, so yes, she has some credibility.

Eighty Deuce · Jul 1, 2012

Here was an article by Salon on Friday that caught my eye then. Here is a key excerpt:

........... It is impossible for a lawyer to read even the first few pages of the dissent without coming away with the impression that this is a majority opinion that at the last moment lost its fifth vote. Its structure and tone are those of a winning coalition, not that of the losing side in the most controversial Supreme Court case in many years. But when we get to Page 13, far more conclusive evidence appears: No less than 15 times in the space of the next few pages, the dissent refers to Ruth Bader Ginsburg’s concurring opinion as “Justice Ginsburg’s dissent.”

There is one likely explanation for this: The dissent was the majority opinion when those who voted to overturn the entire ACA signed off on sending their text to the printer. In other words, Chief Justice Roberts changed his vote at the very last possible moment.

It is inconceivable that the dissent reads as it does by inadvertence. We can be sure every word of it was proofread countless times by the dissenters’ 16 clerks, all of whom know how to make a global change on a word processing program.

Another unavoidable conclusion seems to be that the dissenters intentionally left the parts of their text referring to Ginsburg’s “dissent” unchanged. This was a symbolic gesture, intended to reveal, without formally breaking the justices’ code of silence, what the Chief Justice did to them — and, as they no doubt see it, to the country and the Constitution — through his last-moment reversal.

read more: http://www.salon.com/2012/06/28/did_john_roberts_switch_his_vote/
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The author, Paul Campos, picked up on it by Friday. The four remaining, and now "dissenting" Judges, left the clues all over the final opinion that Roberts had flipped late.

waltky · Jul 2, 2012

Granny says he did it so's people get mad at Obama an' not vote fer him inna `lection...

CBS: Roberts switched vote on health care
Jul 02, 2012 - The decision by Chief Justice John Roberts to uphold President Obama's health care law will be studied for years -- and now details are emerging from the normally leak-proof Supreme Court itself.

Jan Crawford of CBS News, citing "two sources with specific knowledge of the deliberations," reports that Roberts indeed switched his vote after siding with four other conservative justices who supported striking down the law. "Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said," reports Crawford. The dispute among the conservative justices revolved around the so-called individual mandate, the requirement that nearly all Americans buy some form of health insurance or pay a fine.

Roberts wanted to strike down the mandate -- calling it an overreach of Congress' power to regulate interstate commerce -- but maintain other parts of the health care law. The four other conservatives -- Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito -- argued that if the mandate fell, the whole law would have to fall as well. Rather than strike down the whole law, Roberts -- in an alliance with the court's four more liberal members -- crafted his own opinion, upholding the law and the mandate under Congress' taxing authority. That position was joined by Justices Ruth Bader Ginsburg, Stepehen Breyer, Sonia Sotomayor and Elena Kagan (the latter two being Obama appointees).

The CBS story is generating quite a bit of buzz, not least of which revolves around the possible identities of Crawford's sources. While she has been on presidential campaign duty in recent months, Crawford covered the court for years and maintains very good sources. You can't help but wonder if some of the justices themselves are talking about Roberts' actions. Crawford writes on the pressure that conservative justices applied to Roberts:

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.

Source
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SFJEFF · Jul 2, 2012

So Roberts is willing to buck the pressures and opinions of those who disagree with him.

Sounds like a Justice who is determined to not let other justices influence his decision.

Good for him- rather shocks me but good for him.

Radio Refugee · Jul 2, 2012

SFJEFF said: ↑

So Roberts is willing to buck the pressures and opinions of those who disagree with him. .
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Quite the opposite. Roberts caved to the endless leftwad media propaganda campaign and ignored constitutional issues in order to cater to political goals.

Inexcusable.

exotix · Jul 2, 2012

Also ...

http://www.huffingtonpost.com/2012/...rt-chief-justice_n_1641481.html?ncid=webmail6

In addition to private jostling within the Supreme Court, it appears that the public spotlight was a factor.
The CBS report points to how Roberts pays attention to media coverage.
With his court's reputation on the line, one source suggested that the chief justice became "wobbly" in the eyes of his conservative counterparts.

As the court made its historic Affordable Care Act ruling on Thursday, suspicions arose regarding Roberts being scared off by Justice Antonin Scalia.

The Daily Beast highlighted one theory from a reader who clerked on an appellate court.

*He certainly didn't trust the dissenters, as he clearly instructed his law clerks to begin working on an alternative majority opinion (the final product was too polished and too long to have been written at the last minute).
And he waited to see what was written*

Coupled with that opinion were details that pointed to some oddities within the formatting of Scalia's dissent, via The Volokh Conspiracy.

http://www.volokh.com/2012/06/28/more-hints-that-roberts-switched-his-vote/

Notice also that his response to Roberts is tacked on at the end, rather than worked into the body of whatever he was writing (see page 64 of his dissent).

For example, one would have expected Scalia to directly take on Roberts’ application of the Anti-Injunction Act, but his brief section on that act only mentions what “the Government” argues (see pages 26-2.

The 5-4 ruling in favor of preserving the mandate may have also fit into a bigger picture.

HuffPost blogger Adam Winkler noted that Roberts' heaviest interest is not health care, writing that the chief justice may want to "preserve the Court's capital to take on other big issues."

http://www.huffingtonpost.com/adam-winkler/the-roberts-court-is-born_b_1634070.html

SFJEFF · Jul 2, 2012

Radio Refugee said: ↑

Quite the opposite. Roberts caved to the endless leftwad media propaganda campaign and ignored constitutional issues in order to cater to political goals.

Inexcusable.
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so because Roberts ruled in favor of Obamacare, he is a coward?

Lol. Yet if he had ruled against it you would still have been holding him up as a paragon of justice.

LOL.

Just can't stand an independent judiciary can you?

Radio Refugee · Jul 2, 2012

SFJEFF said: ↑

so because Roberts ruled in favor of Obamacare, he is a coward?

Lol. Yet if he had ruled against it you would still have been holding him up as a paragon of justice.

LOL.

Just can't stand an independent judiciary can you?
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Tell us how you describe Kagen, Sotomayer, Breyer and Ginsberg voting in lockstep over and over. WTF is that? Independent?

The hard leftwads suffer no NY Times criticism at any time under any circumstances. Roberts was pre-demonized. He was slammed for a solid year BEFORE the decision.

That you can't see it sez it all.

Piscivorous · Jul 2, 2012

Radio Refugee said: ↑

Tell us how you describe Kagen, Sotomayer, Breyer and Ginsberg voting in lockstep over and over. WTF is that? Independent?

The hard leftwads suffer no NY Times criticism at any time under any circumstances. Roberts was pre-demonized. He was slammed for a solid year BEFORE the decision.

That you can't see it sez it all.
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Full year my ass. He and the conservatives on the court were publicly lashed at Obama's first SotU.

The irony is that during the same SofU Joe Wilson called it corectly: "You Lie!"

septimine · Jul 2, 2012

SFJEFF said: ↑

so because Roberts ruled in favor of Obamacare, he is a coward?

Lol. Yet if he had ruled against it you would still have been holding him up as a paragon of justice.

LOL.

Just can't stand an independent judiciary can you?
Click to expand...

He caved, and the evidence is that crazy, pants-on-head stupid reasoning in his decision. Only a semi-literate moron would confuse a fine and a tax. Yet, we have a supreme court justice who literally thinks that ordering someone to purchase a product and making them pay the government if they don't constitutes a "tax". that same exact thing happens if I get pulled over for not having auto insurance, but in that case and in every other case, it's a fine. What Roberts did was redefine the word tax to include a fine. I mean high school drop outs understand this. The idiots at wikipedia get it. Junior high school civics students get it. So either the man was somehow convinced to change his vote, or he's literally too stupid to tie his own shoes. Either way, he's not a good choice for supreme court.

Lil Mike · Jul 3, 2012

SFJEFF said: ↑

so because Roberts ruled in favor of Obamacare, he is a coward?

Lol. Yet if he had ruled against it you would still have been holding him up as a paragon of justice.

LOL.

Just can't stand an independent judiciary can you?
Click to expand...

So you agree that Citizens United was decided correctly and constitutionally?

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