The story that has everyone buzzing comes from Jan Crawford of CBS News, who writes that John Roberts did indeed switch his vote on the Affordable Care Act ruling at the last minute, much to the chagrin of the Court’s conservative wing:
Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.
“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.
The sources with specific knowledge of the deliberations certainly sound like conservative clerks, if not the Justices themselves. And they paint a narrative of a “wobbly” Roberts succumbing to external pressures and backing off his initial agreement to strike down the mandate entirely. In fact, they suggest that Roberts was swayed by media reports.
I’m not sure I totally believe that aspect. The media reports were plentiful in the immediate aftermath of the oral arguments, but not so much after that. Linda Greenhouse notes that conservative opinion-makers thundered out of nowhere around Memorial Day against claims that the “liberal media” pressured Roberts. Crawford’s sources fit with this, perhaps too well. They’re probably the same ones who leaked to George Will and other conservative columnists at that time.
But I’m totally willing to believe that Roberts blinked, and grabbed at the argument set up by Donald Verrilli about the mandate being constitutional under the taxing power. That doesn’t mean that Roberts did no damage to federal power and Commerce clause jurisprudence. Here’s Pam Karlan:
The immediate result of Thursday’s 5-to-4 health care ruling was a victory for the Obama administration and the millions of Americans who will get improved access to medical care. But four justices would have struck down every provision of the 900-plus-page act, and Chief Justice John G. Roberts Jr., who provided the fifth vote to uphold the mandate that individuals buy insurance or pay a penalty, distanced himself from the law. “It is not our job,” he wrote, “to protect the people from the consequences of their political choices.” The chief justice, who at 57 is likely to sit on the court for at least another two decades, made clear that government’s ability to address many of the nation’s most pressing problems is subject to some new limitations […]
What, then, to make of the court’s landmark decision to uphold the individual mandate? Chief Justice Roberts construed the mandate not as a requirement that individuals purchase health insurance but as a choice: buy insurance or pay a tax. But the conservatives surely know that a Congress that can tax but not do much else — spend money, regulate the economy or enforce civil rights — will be hamstrung. Taxes are unpopular and nearly every Republican member of Congress has promised to oppose any additional taxes on individuals or businesses.
A Congress that can advance national priorities only through its taxing power is a Congress with little power at all. That is the real legacy of the last term. The Supreme Court has given Americans who care about economic and social justice a reason to worry this Fourth of July. The court’s guns have been loaded; it only remains to be seen whether it fires them.
Karlan adds that the Court, in limiting the leverage over the states in the Medicaid expansion, struck down a measure of Congress’ spending authority “for the first time since the New Deal.” (with the help of more liberal Justices Stephen Breyer and Elena Kagan, I should add; the other hot argument is that Breyer and Kagan agreed to this in exchange for upholding the mandate). The fact that Roberts expanded the taxing power is of little solace here, for the reasons that Karlan articulated. And I still believe that the limits on the Commerce clause, which Chuck Schumer lamented, will eventually return in some other form, as the majority on the Court showed themselves willing to limit the Commerce clause, even if there is little applicability to how they accomplished it in this case. Jeffrey Toobin has more on that.
Roberts risked his reputation with conservatives in the short term in exchange for a long term assault on legislative power. But just as there are five votes in his favor, Ruth Bader Ginsburg’s brilliant opinion shows there are four votes for an expansive reading of those powers. So this will play out over elections as well as on the bench.