The Roberts Reversal
I’m going to go out on a limb here and guess that you’ve by now read Jan Crawford’s CBS blockbuster on Chief Justice Roberts’ decision to switch sides for the Obamacare ruling. If you haven’t, the short version is thus: At some point, Roberts was signed-on with the Court’s four other conservatives to nix the mandate. He even, it seems, wrote an opinion to this effect. But then one of either two things happened—Roberts couldn’t persuade his fellow Republican-appointeds to take a deep breath and refrain from killing the law entirely; or Roberts simply changed his mind about the mandate’s constitutionality and felt himself compelled to uphold the measure as constitutional according to Congress’s taxing authority.
However he got there, right before he high-tailed it to his “impregnable island fortress,” Roberts ended up standing next to the Court’s four Democrat-appointed Justices. As the very existence of the CBS piece testifies, the Court’s conservatives were not amused.
It’s worth reiterating how abnormal is this CBS article. As The New Republic recently explained, the Supreme Court simply does not leak. That’s not the same as to say after-the-fact explanations aren’t shared with the media. But these revelations usually reach the public through the memoirs of a retired Justice, a book by a former clerk, a retiring politician leaving a plum spot on a Judiciary Committee, and so forth. Unless the Court is about to experience an unexpected departure, the usual explanations for how we’ve come to know of the Roberts reversal don’t hold. Someone — likely one of the four conservative Justices, directly or indirectly — is trying to shame Roberts.
Perhaps the biggest hint in this regard is simply the framing of the piece. Roberts’ volte-face could have been inspired by any number of factors, followed-through due to any number of motivations. As Talking Points Memo’s Brian Beutler (who is basically the only person who saw the ultimate outcome of the case, however dimly) has noted, the facts available to us right now could neatly fit into any story-telling constellation. Beutler recommends everyone simmer down. Unfortunately, when CBS serves-up red meat to apoplectic and perplexed conservatives looking for an effigy to burn, there’s not much chance the heat on Roberts will soon desist:
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. […]
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.
You almost certainly don’t need my assistance, but just in case you missed it, here’s the subtext of the above: John Roberts is a weak-willed RINO who cared more about what the liberal media thought than what the Constitution demanded. And just in case you were wandering your way towards the mistaken belief that Roberts might’ve genuinely had a good reason to buck the GOP, “a source with knowledge of the conversation” between Roberts and “one conservative justice” assures you that, no, the Chief Justice’s explanations left either Alito, Scalia, Thomas, or Kennedy “unsatisfied.” The chances of that sourcenot being one of the four ultimate dissenters? Ahem.
It’s easy to shrug your shoulders and call it all so much sour grapes, of course, but while I was ultimately happy with Roberts’s decision — or at least the real-world consequences of his decision — his rightwing detractors are not without fair cause for consternation. Because, really, there’s a reason so very few reached the same conclusion as the Chief Justice. Exclusively on its intellectual merits, Roberts’ argument is, shall we say, sub-optimal. Jonathan Chait went pretty deep on this:
There were numerous arguments for the constitutionality of the law. The argument that it could be uphold under the power to tax struck me as convincing… but not completely airtight. You could plausibly deny the mandate was a tax, whereas the arguments denying it as a function of the Commerce Clause were insanely tendentious. Liberal lawyers were unanimously supportive of the Commerce Cause justification and divided on the taxing arguments. Conservative lawyers were divided on the Commerce Clause and united on the taxing authority. The overlap of legal minds willing to accept the fantastical right-wing arguments against the law but also to accept the weakest liberal argument for it contained nobody at all, until Roberts himself stepped forward to claim this unoccupied territory.
Crawford’s report will enrage conservatives. (The conservative justices and/or clerks who spoke with her probably leaked the story precisely in the hope that it would.) They’re right to be enraged. The essence of law is to decide cases on the basis of what the law says, not on the basis of personal preference or some other consideration. Roberts seems to have corrupted his role as a judge, deciding upon the outcome that made him most comfortable and working backward to a justification for it. The epithet legal scholars use for this sort of thing is a “results-oriented decision.”
What we’re left with is a SCOTUS decision that, in its cravenness, unlikelihood, and impenetrability is not only a dopplegänger of the health care law it upheld, but a mirror image of the hideous, seemingly endless process through which Obamacare was written and passed. By comparison, this November’s election, which will finally decide Obamacare’s fate, looks like a simple and serene walk in the park.