When many of us were covering the decision from the Supreme Court, one thing that was immediately noted was the the decision of Associate Justice Anton Scalia read like a majority opinion. The opinion not only referred to “the dissent” as if it were the majority opinion (though sometimes justices even in dissent can refer to other dissents). Reports are now indicating that Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the Affordable Care Act. The report is a serious breach in the normally secretive court in its internal deliberations and contains considerable detail showing a hard effort by the Court’s swing justice Anthony Kennedy to convince Kennedy to return to the fold. The report is likely to increase the feeling of betrayal by those who felt that opinion harmed federalism by reaffirming the taxing power as an easy avenue to circumvent state rights. That was the subject of my column the day after the ruling.
The conservatives responded to the defection by refusing to sign on to any part of the Roberts decision, even though they were in agreement on some parts.
The reports say that Roberts initially voted in conference with the conservatives – giving himself as the most senior justice on that side the presumptive majority opinion. Roberts was generally viewed as a lock for the conservatives as opposed to the more moderate Kennedy.
As I said in my USA Today column, I credit Roberts to ruling as he believed was correct — regardless of the backlash or popularity. I simply do not see the consistent line of principle in the rationales.
I have previously expressed my disagreement with the Roberts opinion on federalism grounds. This will certainly be one of his most famous opinions, but I would not call it one of his best. The opinion seems to me to be hopelessly conflicted and inconsistent. After denouncing the use of the Commerce Clause to justify the law as a claim without a limiting principle, he embraced a view of the tax authority that sweeping and potentially limitless under this “functional approach.” He expressly states that tax authority can be used to simply influence decisions of citizens.
Moreover, I do not get the widespread view that this opinion showed Roberts breaking away from the rigid 5-4 split of the Court saving its credibility. This was a 5–4 decision that was heavily splintered. This is the only time that Roberts has joined a 5-4 decision on the side of the liberal justices. I do not see how this is such a roaring victory for collegiality or unity. What I do see is another example of why we need to expand this Court. As expected it can down to one justice — in this case a justice who literally flipped the result in the final stretch of the deliberations. With only 9 nines, individual concurrences can undermine the clarity or meaning of such a decision. The reason I wrote the earlier column (and a longer piece) on the expansion proposal in the Post — the follow up column in the Guardian — was because the momentous decisions this week shows the dangers of this concentration of power — a concentration that other leading nations avoid. I would have felt the same way if the result were flipped — as many of us expected.
With a larger court, it is certainly possible to have a 9-8 split (many people missed the fact that I proposed a 19 member Court in the hopes of returning to two justices serving by designation each year on lower courts). However, the experience with both appellate courts sitting en banc and foreign high courts show that these alliances are more fluid and less predicable. I am scheduled to discuss this proposal on NPR’s Talk of the Nation today.
Source: CBS
http://www.huffingtonpost.com/2012/07/02/john-roberts-health-care-decision_n_1642739.html?ref=topbar
“Some legal scholars suggest Roberts produced an essentially conservative opinion with a liberal outcome”
According to this article it is not the first time Roberts has joined liberals: “Just three days earlier, Roberts, joined by Kennedy this time, sided with three liberal justices in the Arizona immigration case.”
Maybe Roberts decided the concurring side was correct. Instead of knee jerk joining with the conservatives, maybe he finally showed what the dems expected of him when they confirmed him, a conservative with integrity who will vote law, not party. Just took him a very long time to get there.
leejcaroll
1, July 2, 2012 at 9:36 am
” have to wonder had the result been 5-4 the other way what would the complaints be then?”
One small example:
“By ALEXANDER BURNS | 6/21/12 4:20 PM EDT
Yes, you read that right.
Indiana Treasurer and GOP Senate candidate Richard Mourdock applauds the Supreme Court’s decision invalidating the Affordable Care Act in a new video uploaded to his YouTube account.
The catch, obviously, is that the Court hasn’t ruled on ACA just yet, and won’t do so until next week. Mourdock’s video, titled “ObamaCare3,” is apparently a pretaped message in the event that the health care law goes down, but it hit the Web early.”
http://www.politico.com/blogs/burns-haberman/2012/06/mourdock-cheers-scotus-for-striking-down-obamacare-126959.html
A Repost;
“eniobob
1, July 1, 2012 at 2:11 pm
Thanks for the lead in AY:
“Anonymously Yours
1, July 1, 2012 at 9:05 am
We can count men by their actions…..”
In Supreme Court Term, Striking Unity on Major Cases
By ADAM LIPTAK
Published: June 30, 2012
http://www.nytimes.com/2012/07/01/us/supreme-courts-recent-term-a-new-phase.html?_r=1&ref=politics
Anonymously Yours
1, July 1, 2012 at 3:10 pm
Eniobob,
Apparently I can be of service….. You’re very welcome….
The NYT had a piece showing that this was the first time the CJ voted with the “liberals” in a 5-4, which also showed how often the other Js had done so. I am not sure what this statistic is intended to prove and to me it seems somewhat meaningless for a couple of reasons.
First, it is conventional wisdom that J. Kennedy is a swing vote, so any time the CJ voted with J. Kennedy and the liberals in 6-3 appears equally as meaningful as the 5-4. Also, by way of example, the Times listed only two cases where J. Scalia sided with the liberals (as the majority in a 5-4), but I know he has voted with J. Ginsburg more often than that (often in the minority, if memory serves).
But since the issue is at hand, I wonder how often the liberals are with the four conservatives in a 5-4 majority. (Recognizing that Js Kagan and Sotomayor are relatively new additions to the Court.)
It reminds of all other things republican (at least since Obama won). They wanted to present the dissent as the majority even when it wasn’t. Lie and misrepresent enough and it will be the truth, ask people if they like individual parts of the ACA and they approve, ask if they approve of “Obamacare” and the republican/tea party influencing lies become apparent – Oh yes I like pre existing coverage now ok, kids til 26, closing donut hole, etc but Obamacare? Oh no that is awful.
There are hints Roberts did change his stance (referring to Ginsberg dissent (per Dredd comment) but when is that a crime (or awful)? The profeesor notes this is the first time Roberts did not join the usual 5-4 split, along political party lines. This is a bad thing? I have to wonder had the result been 5-4 the other way what would the complaints be then? It would have been further proof of the total politization of the Court.
There were some writing comments here on this case when it was first argued.
They postulated that ACA would be uphold because it was to the benefit of the private insurance industry and that Roberts would lead the way. Perhaps they were right, though the Thomas nay vote might belie this theory.
Some think that the anti-health care movement talking points have been engineered by the military propagandists:
(Your Health Is Their Number One Enemy?, quoting National Defense Magazine). The military spends more on WMD, wars, and fortresses in 192 nations around the world, than the other nations combined.
They have moved USCENTCOM to the oil zone of a foreign nation, from Florida where it once was.
They moved in next door to Haliburton, who also moved their HQ to the land of Oilah Akbar.
The largest Naval port, tallest building, and oil kingdom is there.
Clue?
I’d be happy to join with any of those on the right who’ve expressed their anger about his rational decision by calling for Roberts’ impeachment.
eniobob 1, July 2, 2012 at 8:39 am
Well heads have been exploding since Thursday,and I don’t see that quieting down for awhile.Nor do i suspect that Chief Justice Roberts had any idea of the vitriol that would be coming his way.
========================================
Yep, the olde syndrome: “have you seen my people, I can’t find them, please take me to them, I am their leader.”
Well heads have been exploding since Thursday,and I don’t see that quieting down for awhile.Nor do i suspect that Chief Justice Roberts had any idea of the vitriol that would be coming his way.
AY:
Years ago, I remember going through a file box at the Va. Supreme Court prior to arguing an appeal. Among the record was the apparently misplaced clerk’s memo to her particular justice outlining the case and recommending an analysis. It said I should win and indicated some discussion with the Justice to that effect on one of the issues. I lost — with the Justice in question writing the opinion.
These memos are all over the place and come from everywhere. They are opinions and nothing more.
Here is some of the reasoning regarding the suspected change by Roberts:
(Salon). Did he finally realize that the wild-eyed extremists had sucked Kennedy into the vortex and he wanted out of the ill advised judicial activist position the far right was taking?
Mespo,
When you want to smear someone, why let facts get in the way….. I am interested in how she obtained these memos….. Reckon they are in his personal papers at the schools library….. Or do you think they were intentionally leaked…… But then again, I am one for open deliberations…..
BTW, I don’t think her “unnamed sources” are other conservative justices. Imagine Roberts reaction if he concluded that they were his colleagues. His authority to assign cases and voting power to shape opinions on an ideologically equally divided court is a sleeping giant the conservative faction would not want to awaken.
Another rule of the successful application of power is that power never suffers a betrayal of privity gladly. Every person who has ever been in a close relationship knows that rule.
While the conservative cutting their noses off is childish, it only is an expression of “covering their A..”, and damage control vv their “buyers”.
I’m sure they are promising now that they will nail his cojones to the table next time.
Bought is bought. So wonder who’s paying Roberts?
The judgememt judgomg is for others. It is the public impact that is important to me
Sounds like conservative payback to me founded on nothing more than rumor. Here’s how one conservative blog described CBS’ commenter Jan Crawford:
“Crawford, moreover, is a very well connected conservative reporter who has, at times, worked closely with the Federalist Society to drive conservative legal narratives. Nothing is certain, but it is likely that one or both of Crawford’s sources is a conservative justice.”
Crawford has an agenda and it’s a little too Fox News-ish for my taste.
http://thinkprogress.org/justice/2010/06/05/176825/crawford-kagan-smear/
The other conservative Justices couldn’t stand the fact that Roberts was not going to play ball with them so they did the adult thing. They tattled on him!
Well not all things are as they seem…..I wonder if some are having buyers remorse…… Except in this matter its lifetime…….I wonder if Scalia leaked the internal document….. Oh well, sour grapes have been sung about before…..
I put in a bad end tag for italics … hope this fixes it.
“This is the only time that Roberts have joined a 5-4 decision on the side of the liberal justices</I."
That is what I said in comments on the original post here.
I also said that he was shocked at the judicial activism of his conservative colleagues, whom he now sees as having lost their judicial restraint, and have set a course for judicial catastrophe.
Another law blog pointed to the reference in the dissent of Scalia to "The Dissent", which later became the majority.
That seems to me to be a smoking gun that supports the hypothesis that he changed his mind after reading the extremist rhetoric posing as judicial professionalism.
The argument, then, is that he came to his judicial senses, but the extremest dissent argues that he became a traitor.