Roberts switched views to uphold health care law

And in a 1995 term limits case, when the Court rejected state efforts to impose term limits on Members of Congress, Kennedy wrote a separate, concurring opinion to make a point about federalism:

"Federalism was our nation's own discovery. The framers split the atom of sovereignty . . . It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other."

Those structural boundaries, Kennedy believes, help protect the individual from runaway government power, and are key components to protecting liberty.

All of that dovetails with Kennedy's position on the individual mandate in the health care law. 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.

"People, for good reasons of their own, often fail to do things that would be good for them or good for society. Those failures - joined with the similar failures of others - can readily have a substantial effect on interstate commerce," Roberts wrote in his opinion. "Under the government's logic, that authorizes Congress to use its commerce power to compel citizens to act as the government would have them act.

"That is not the country the framers of our Constitution envision," Roberts wrote.

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.

Indeed, 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 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."

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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!!!!