Et Tu, Roberts II: Chief Justice Reportedly Switched Sides After Originally Voting To Strike Down The Health Care Law

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

44 thoughts on “Et Tu, Roberts II: Chief Justice Reportedly Switched Sides After Originally Voting To Strike Down The Health Care Law”

  1. maybe j.r. had a “come to jesus” moment when he saw clarence with an “i’m with stupid” t-shirt on

  2. mahtso 1, July 2, 2012 at 2:54 pm

    Dredd,

    Because the License Tax Cases quote applies to “activity” would it have been necessary to overrule those cases to find there was no tax authority?

    And because it would not have been unreasonable to conclude that Congress has the authority to levy the tax, but (based on legislative intent) did not do so here, a ruling striking down the law could have been issued without overruling those cases.

    Thanks for the response.
    ==========================
    You are welcome.

    As to your question, “Because the License Tax Cases quote applies to “activity” would it have been necessary to overrule those cases to find there was no tax authority?

    I tend not to rely on my own opinion in such matters, but the answer I think is “not in this case”, based upon three enumerated constraints.

    So let me quote from the authority of constitutional law professors, and more specifically, from a brief section filed in the lower courts in this litigation:

    The Court has long emphasized the wide scope of Congress’s taxing power, describing it as ”extensive,” License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867), “exhaustive,” Brushaber v. Union Pac. R.R., 240 U.S. 1, 12 (1916), and “virtually without limitation,” United States v. Ptasynski, 462 U.S. 74, 79 (1983). “As is well known, the constitutional restraints on taxing are few. * * * The remedy for excessive taxation is in the hands of Congress, not the courts.” United States v. Kahriger, 345 U.S. 22, 28 (1953), overruled in part on other grounds, Marchetti v. United States, 390 U.S. 39 (1968); see also Veazie Bank, 75 U.S. at 548 (“The power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected.”).

    Despite its breadth, the scope of the taxing power is not unlimited. The Court has identified three tests that a valid tax must satisfy.

    The first constraint is evident from the text of the Constitution: To be valid, a tax measure must seek to “pay the Debts and provide for the common Defence and general Welfare.” U.S. Const. art. I, § 8, cl. 1; 1 Joseph Story, Commentaries on the Constitution of the United States 663 (Melville M. Bigelow ed., 5th ed. 1891). Congress enjoys wide discretion to determine whether a tax measure serves the general welfare. Helvering v. Davis, 301 U.S. 619, 641 (1937); see also South Dakota v. Dole, 483 U.S. 203, 207(1987); Buckley v. Valeo, 424 U.S. 1, 90-91 (1976). But that the general welfare constraint on the tax power is enforced primarily through the political process does not make the requirement any less real. See Kahriger, 345 U.S. at 28; McCray v. United States, 195 U.S. 27, 55-5 (1904).

    Second, to fall within the tax power a measure must bear “some reasonable relation” to the “raising of revenue,” United States v. Doremus, 249 U.S. 86, 93-94 (1919), even if the revenue actually produced is “negligible,” United States v. Sanchez, 340 U.S. 42, 44 (1950). Accord Kahriger, 345 U.S. at 28 (noting tax at issue “produces revenue”); Sonzinsky v. United States, 300 U.S. 506, 514 (1937) (sustaining tax “productive of some revenue”); Hampton v. United States, 276 U.S. 394, 412 (1928) (requiring only a “motive * * * [and] effect * * * to secure revenue”); see also Nigro v. United States, 276 U.S. 332, 353 (1928) (concluding any “doubt as to the character” of a tax measure was removed when “what was a nominal tax before was made a substantial one”).

    Third, the Court has also rejected tax measures that violate independent constitutional prohibitions, such as the Fifth Amendment’s prohibition on double jeopardy. Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767, 778-79, 784 (1994); accord Marchetti, 390 U.S. at 50-52 (invalidating wagering tax as violating Fifth Amendment privilege against self-incrimination).

    (AMICUS CURIAE BRIEF OF CONSTITUTIONAL LAW PROFESSORS,US DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION, #3:10-cv-00188-HEH, bold added for clarity). The dissent, once the case got to the Supreme Court, may not agree with those professors, but the majority in the Supreme Court did in substantial degree.

  3. “Is this possibly the same leaked ‘memo’ that caused Fox News to initially and erroneously announce victory over ACA?”

    The same thought crossed my mind as well, Blouise.

  4. Is this possibly the same leaked “memo” that caused Fox News to initially and erroneously announce victory over ACA?

  5. Dredd,

    Because the License Tax Cases quote applies to “activity” would it have been necessary to overrule those cases to find there was no tax authority?

    And because it would not have been unreasonable to conclude that Congress has the authority to levy the tax, but (based on legislative intent) did not do so here, a ruling striking down the law could have been issued without overruling those cases.

    Thanks for the response.

  6. mahtso 1, July 2, 2012 at 11:03 am

    “I think he sincerely felt that the right wing of the court (Scalia, Thomas, Alito) had gone way to far right, dragging Kennedy along in the process, and that it was bad for the court and the nation.”

    How so? the CJ agreed with them as to the Commerce Clause and it is hard to see how the dissent’s rejection of the Tax argument could be construed as “going to the right.”
    ===========================================
    The more lasting approach would be to dispense with the dicta about the Commerce Clause, and the opinions of the dissent, because that is generally unavailing when citing and using the case to argue future cases.

    What parts of the case would one cite when using it in a future argument, knowing that “the worst to cite is dicta”?

    Why was the case decided supporting the mandate under the congressional power to tax?

    The reasoning on that subject seems sound:

    Congress may also “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. Put simply, Congress may tax and spend. This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control. See, e.g., License Tax Cases, 5 Wall. 462, 471 (1867).

    (Roberts’ opinion, bold added). That is long-standing law, so the majority decision does not seem controversial in that light.

    What I mean by “Going to the right” is when the only ones supporting, in effect, overruling the precedent of the License Tax Cases was the right wing of the court.

  7. Switched sides? What are the two sides? Three sides maybe? Where is Scalia on the Confrontation Clause vs. Breyer? Where is Scalia on the First Amendment v. Breyer? Seems like Scalia can be for liberty when its the Confrontation Clause and against it when its Free Speech.

    So Roberts votes with the other three New Yorkers and on Calfornian. Maybe that means the four New Yorkers are on one side. Scalia and Alito hail from the other side of the river over in New Jersey.

    Or maybe you mean RepubliCon side vs. Democrat side. So here Roberts is voting with the Dems. That is switching sides I suppose.

    Most perceptive Court watchers dont designate “sides”. Side, depends on the issue. When its taxes then there are no sides. When it is the integrity of the Court perhaps Roberts chose the right side. If there is a side. Perhaps he said that he would have a side order of the Sinter Klaus to go with the Commerce Clause and the Tax Clause. Think how many sides there might be if we have 19 Justices instead of 9. Maybe there are 8 sides and one “go along” named Thomas. We know what he is: Unreconstructed. That is why he hung the Confederate Flag on the wall behind his desk in the Attorney Generals Office in Jefferson City, Missouri in the 1970’s. He is Unreconstructed on the 14th Amendment. Fits right in with John Danforth’s notion of a good black man in those years. Put him on the EEOC as Chairman to screw that up and as his reward: Supreme Court. The Confederate Flag story kind of shocked the Democrats from the North, coddled the Democrats from the South and won over the Southern Strategists trying to make RepubliCons out of former redneck Democrats. Viola, confirmation by the Senate. He replaced Thurgood Marshall. What an injustice.

    Sides. Cases on the Court can be like playground baseball games. Choose sides for each game.

  8. “I think he sincerely felt that the right wing of the court (Scalia, Thomas, Alito) had gone way to far right, dragging Kennedy along in the process, and that it was bad for the court and the nation.”

    How so? the CJ agreed with them as to the Commerce Clause and it is hard to see how the dissent’s rejection of the Tax argument could be construed as “going to the right.” (Also, if Ms. Crawford’s sources are right, J. Kennedy was not dragged by the other dissenters, but rather was trying to drag the CJ to, dare I say it, the dark side.)

  9. leejcaroll 1, July 2, 2012 at 9:36 am


    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 think he sincerely felt that the right wing of the court (Scalia, Thomas, Alito) had gone way to far right, dragging Kennedy along in the process, and that it was bad for the court and the nation.

    So, in that light I can’t say that it was bad or that Roberts was wrong in this case.

  10. Think it means that the dems finally (wish I could bold that but dont know how here) are getting the word out about the benefits of the ACA, something they should have been doing everytime a new part of it became law.

  11. Chief Justice Roberts gave the Republican party a “root canal”with no novacane,with his decision for they are still screaming.

    ” “Sometimes, due to trauma or decay the “nerve” inside the tooth dies off. Any passing bacteria find this a source of nourishment and proceed to munch on the dead nerve and have lots of babies “

  12. leejcaroll
    1, July 2, 2012 at 10:02 am
    “Eniobob thats worse then the repubs yelling gleefully when CNN and Fox misreported that ACA hadbeen struck down.”

    “One small example”

  13. Mr. Turley…can you advise me on this??
    Citizens for Responsibility and Ethics in Washington(CREW) and National Security Archive(NSA) filed a suit against the EOP for email and records…and the judge ordered a settlement…. http://www.gwu.edu/~nsarchiv/news/20091214/index.htm
    my case against the EOP was for emails and documents during the same time period as CREWS and NSAs suit, but the judge ruled against me….is the judiciary subject to political manipulation…see my suit on FBI wiretapping the Supreme Court…(IS THE SUPREME COURT SUBJECT TO POLITICAL MANIPULATION BY THE FBI?????????? SEE… w.voinche v. FBI, 940 F.Supp. 323(DDC 1996)….no this is Amerika….

  14. Rafflaw, I am sorry I guess sometimes I think too concrete and not abstract. I didnt get it then and dont now ): sorry.
    Eniobob thats worse then the repubs yelling gleefully when CNN and Fox misreported that ACA hadbeen struck down.

  15. What I found most interesting was that the report I read sounded like a love letter to Justice Kennedy. To me that indicates where the leak came from, the boys & girls in his office. Interesting politics inside their cloistered halls as well as outside of it.

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