Roberts switched views to uphold health care law

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.

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.

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[RangerDan107]

Wow, imagine that, a conservative with a conscience.

[ElWarboGrande]

Do you really believe he voted his conscience when he redefined the law so that the government can penalize us for not buying something they want us to as long as they call it a "tax" and not a "penalty"?

Never mind the fact that proponents of the law and even the President himself, in order to justify this monstrosity and make it sound nicer, ironically assured us that this was not a tax.

At any rate, despite the vote from the Court, This "tax" is still not constitutional because it didn't follow the constitutional process for imposing a tax. Taxes are supposed to originate from the House of Representatives, not the Senate, to ensure that it comes from the body of the legislature most answerable to the people. Have you ever heard the phrase "NO TAXATION WITHOUT REPRESENTATION"?

[seekingjustice]

The key to the switch was Leahy's "floor show" and threat of exposing the corrupt US Court System including the Supreme Court. Leak or no leak. How about I have dirt on you and that decision better go the way I want it or I will not only expose the dirt--I will initiate investigation and have the House impeach you. Senator Leahy was more than aware of corruption; evidence supported corruption in the Supreme Court where they aided and abetted the lower courts and the Administrative Offices of the US Courts in a cover-up of Title 18 criminal law violations. Serious criminal violations that if exposed would take down a number of high level third branch officials. Senator Leahy was more than aware that the Supreme Court of the United States routinely covers corruption in the lower courts by simply denying Petitions only this time the DENIED was an attempt to cover up corruption that had strong evidence of racketeering, extortion and dishonest service fraud as well as other Title 18 violations. NO ONE IS ABOVE THE LAW!! The corruption involves Judges, Clerk of Courts and outside attorneys as well as multiple lower level court staff. This time the corruption invalidated four acts of congress and the first and fifth amendment to the constitution. The evidence showed any means to the end where court rendered opinions and the court dockets themselves were evidence of crime. Did you know that when racketeering includes conspiracy and a homicide occurs that all involved in the conspiracy are charged with the homicide? My Scribd site only brushes the evidence against these taxed paid scum and the SUPREME COURT OF THE UNITED STATES OF AMERICA AIDED AND ABETTED CRIME!! The lower courts need to be SHUT DOWN--they are ran by criminals; Impeachment of Roberts and possibly other justices needs to take place and each and every clerk that worked the 2011 term needs a serious sit down with federal law enforcement. I hate quoting Nancy Pelosi but guess what 3rd Branch scum, "THE PARTY IS OVER". No more subjecting the average Joe's here in America to perversion of law and rule while ignoring evidence supported fact to achieve illegitimate judgments that rob the average Joe of property. No more common place violation of constitutional rights from the branch of government that is set aside from other government to ensure rights are not violated. Our court system is set up as a huge racketeering enterprise for attorney profit and quid pro quo benefits for court staff; the Supreme Court of the United States by denying my petition proved it has absolutely no intention of engaging its supervisory powers over the corrupt lower courts and that the Administrative Offices of the US Courts is set up to cover and promote the corruption. The oversight committees have ignored the American people who have been telling them for over a period of years that without fear of consequence the third branch has been aiding and abetting, not only civil rights violations, but crimes against the American people. Now we know why we have been ignored; the Congress and Senate simply use what they know as bargaining chips to achieve their own means to an end. We have no government! We are being ruled by alleged criminals! http://www.scribd.com/tired_of_corruption

[TeaPartyConservative]

What Roberts and the rest of the Liberals on the Supreme Court did to us as citizens is reprehensible! The Supreme Court's decision to allow our Government to FORCE us to buy anything goes against the founding principles of the Constitution that Congress has limited powers over We the People! As I said on the steps of the Supreme Court last Thursday to anyone within earshot...WELCOME TO CUBA EVERYONE!

[BrianCrook]

It is evident that one of Jan Crawford's sources was either Justice Kennedy or someone close to him and that all of them come from the chambers of the Republican-appointed judges, excepting Roberts. Her article says that calling the penalty related to the individual mandate a tax is a strained argument, but it was called such in Massachusetts's version of health-care reform, and this penalty is collected by the I.R.S., and the tax argument was not dismissed when the case was argued in March.

In addition, several paragraphs could have been--and perhaps were--written by one of Kennedy's most adoring clerks: They describe how consistent Kennedy is and how "strong" are some of his opinions.

Moreover, Crawford refers to Justices Scalia, Thomas, & Alito as "solidly conservative and much less susceptible to pressure", when we have seen all of them--particularly Scalia--apparently bend to the pressures of the right-wing media and the money & power players within the right-wing.

Furthermore, Crawford's summary of the case before the Supreme Court mentions only the one federal appeals court that agreed with the Affordable Care Act's opponents, and she never mentions that three other federal appeals courts had found the law constitutional under the Commerce Clause, as did Justices Ginsburg, Breyer, & Sotomayor.

Although I am no fan of Roberts's, I must object to the sleaziness of part of Crawford's story. She claims, without any substantiation, that he pays close attention to how the media portray him and the Court, and that the media led him to change his mind about the individual mandate part of the Affordable Care Act.

This story has made too much from too little. What may be factual is that Roberts, from the beginning, agreed with his fellow Republican appointees and one federal appeals court that the Act cannot use the Commerce Clause to penalize people who can afford to do so and yet do not purchase health insurance.

Crawford's story, however, provides no evidence that Roberts agreed with the Republican appointees that the mandate was unconstitutional or that the entire law must be found unconstitutional even if the mandate were to be so.

I suspect that the justices' conference in March concluded with four justices agreeing with three federal appeals courts (the individual mandate works within the Commerce Clause) and five justices agreeing with another federal appeals court (no, it doesn't). Since Roberts was part of that majority, he took the writing for himself. Scalia & Kennedy began a concurrence to move Roberts's majority opinion further, definitely striking down the entire act. That is in Scalia's nature, and it is plausible that Kennedy definitely wanted in on this case. He probably wanted to write the majority opinion himself. I imagine that Kennedy probably likes being the swing justice, the man in the middle. Ginsburg, thus, began a dissent about how the majority was reading the Commerce Clause in "too crabbed" a fashion.

Roberts had never agreed, however, that they must strike down the entire act or that the individual mandate didn't have other constitutional justification. In the course of drafting his opinion--or, rather, having his clerks draft it--Roberts saw that the tax argument was the strongest argument and that it worked within his judicial framework that the courts' role is to resort to "every reasonable construction" "in order to save a statute from unconstitutionality." Thus, he wrote a majority opinion that lost the fellows who wanted to strike down the entire act and retained the fellows who wanted to save the entire act. This turned the opinion by Kennedy & Scalia into a dissent and turned Ginsburg's dissent into a concurrence.

In a sense, one can read both Roberts's & the dissent as majority opinions. Scalia & Kennedy (who, it appears, did the bulk of the writing; Kennedy read the dissent in court) wrote an opinion that they expected might carry the day or, at least, that Roberts would incorporate greatly into his majority. They could then abandon the remainder or turn it into a brief concurrence. They had four votes, and Roberts agreed with them on the limits on the Commerce Clause and on the Necessary & Proper Clause. It became a dissent when Roberts worked consistently from his own judicial philosophy, which upholds--without use of the Commerce Clause--the Affordable Care Act.

In sum, Crawford's article plays cheap political games while inflating the role of the media, boosting--for no good reason--the "strength" & "consistency" of the four dissenters, and insulting Chief Justice Roberts for being his own thoughtfulness, intelligence, and integrity.

[JulianAlien]

Roberts is FIRED!I do not know where he lives.Can someone in his neighborhood egg his house for me?Make sure you get it on his car.

[ehjay35]

Roberts courageously rose above the politics involved and with the benefits that the law would provide in his mind, he did the Christian thing. This decision will mark Robert's place in American history and there is nothing that the Republicans can do to diminish that fact.

[askagain]

For many people, Roberts will be looked upon as betraying his own principles and and those of our Constitution. Some will view Roberts as an activist judge. To me, Roberts merely talked out out of both sides of his mouth. You are free to view Roberts as a hero and others are free to view Roberts as making a poor decision.

[Barrison00]

re ask again. "Activist Judge?" Why? For upholding Congressional law? "Betraying own principles?" For years I heard the mantra that liberal activist judges were always legislating from the Bench striking down laws and supplanting Congress. That is all we heard on abortion cases and the like. Now it has flip-flopped, one is an activist if you do not strike down laws passed by Congress. It is all result driven with you folks.Is it not just possible Roberts was following what he believed to be law?

[lPonUall]

This is comment #1000!!

[MurdochSucks]

LOL @Obama4All

[thetruthwillout]

This big concern about the overreach of federal power has done exactly what the Republicans wanted it to do -- get people riled up for nothing. The ridiculous notion that the Affordable Care Act is going to be the downfall of America and the end of freedom as we know it is the usual Republican scare tactics. Any idea they don't come up with or agree with becomes a huge drama. "The sky is falling. The sky is falling," said Chicken little. That's how ridiculous all this uproar is. The only ones who stand to lose from this legislation are the greedy insurance companies. Believe me, if they stood to gain from this they'd be pumping billions of dollars into ads that tout its benefits. But they will be the ones put on notice and greed is a powerful motivator. I just wish some people would stop parroting what they hear as gospel and check things out for themselves. We're all going to wake up the day after the last provision is enacted and nothing in our lives will be so different that we'll even notice, that is unless you're a person with a pre-existing condition who has continually been denied insurance, or you're an elderly person whose care cost isn't going to rise based on the severity of your illness. Things are going to change for the better. It has nothing to do with taking your freedoms away and everything to do with making the freeloaders pay!

[lesserof2evil]

Actually the ACA copied many of their ideas, including the individual mandate. Just to show you how hypocritical these people are, and how much they care for the welfare of this country.

[reubenrcbs]

There is something very inappropriate about this article. It is based on nothing. Is it an opinion piece or a report? It reads like a paid political announcement. CBS is doing itself an injustice here. Not only am I suspect of the motives but show me the money trail. The level of pandering in the article is also somewhat Olympic sized. Justice Thomas is as dysfunctional as a Justice can get, unless you're talking about Scalia,and doesn't apparently read enough to know what is going on around him or or is he able to ask questions, but he does like to get paid for making speeches. Gee, I wonder if there is any coincident that Thomas publicly complimented this very same reporter as being one of the best. Hmmm! It was probably a come on or something, since what does this guy really know about anything? They probably had a coke together and that was it. The true beauty of the article is to put everything on Kennedy. Well, he is one of the few justices that have half a brain left (meaning, remaining), but on this issue he seems a little touchy. So, why do we have a Supreme Court? Some one told me that it puts an end to disputes and upholds the laws based on the Constitution. What a crock. There isn't a person on the planet that can't recognize the meaning and importance of universal health care coverage in a society that can more than afford it. This is not the people against the people. It is CBS against the people and we should just turn them off.

[hillzhavays]

The liberal media presents an opinion piece as reporting facts? I've never heard of that.

[jeffksr]

And so what if he did. Maybe we can classify him as an open-minded conservative who is not a blind follow the village idiots like the standard GOP numb-heads. Refreshing to see that maybe the two sides can work out their differences instead of standing on opposite sides of the room screaming at each other like 5 year old girls!!!!