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.




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The fact that Roberts switched sides we knew: it was strongly implied by all the sloppy drafting in the conservatives’ joint dissenting opinion, which ignored Roberts’ actual opinion and called Ginsburg’s opinion the “dissent,” even though in reality, the “liberals” are part of the relevant majority upholding the statute. What’s new in CBS’ reporting is how petty and pissed off the conservatives are at Roberts — or how pissed they want people to think they are. So, what do we learn?
1. People working directly for the conservative Justices, if not the Justices themselves, are leaking to reporters about internal deliberations — a firing offense and huge breach of legal ethics.
2. The message they want out there is that Roberts not only betrayed them, but that he did his against all reasoning (as conservatives define it)
3. They want to discredit the earlier speculation, probably still correct, that either Scalia or his co-author (or both) were sloppy in their joint dissenting opinion; note there is nothing here, though, that explains why their dissent did not reflect who the “dissent” was.
4. But they want you to believe that instead of being sloppy in their drafting — they had months, and this was the last decision, so there is no excuse for this sloppiness — a direct hit on their professional reputations — they were merely petulant and unprofessional, in refusing to work with or even acknowledge Robert’s opinion, even though its logic agrees with theirs in most cases.
Bottom line: the conservatives on the court are immature radicals who, if they don’t get their way, are capable of being both sloppy and unprofessional, and then trying to spin it to the outside. I think that’s how the legal community will read this. JMO.
Torture apologist Marc Thiessen bays at the moon:
Uh, Marc, your (much undeserved) salary is paid for by members of the Georgetown cocktail circuit.
CBS reports.
That proves it!
Now I believe it and take back everything I ever said about the conservative wing of the republican re-election team sitting on the SCOTUS.
The meme is that Roberts bowed to media pressure, was hallucinating, forgot to take his meds, etc — anything except the merits are on the side of the USG here.
What’s more, the little, unenforceable “tax” applies only to those who can afford to, but choose not to buy health insurance.
Please explain why this is an issue. A possible mechanism to change a program is to discontinue the existing, and then replace completely with a modified program, the day following when the first is discontinued.
Medicaid I becomes Medicaid II. Medicaid one ends on 11/30 and Medicaid II starts 12/1.
Problem solved or problem not solved?
This is the funniest story I’ve seen in a long time. Transparency (aka leaks) finally reveals the corruption of SCOTUS.
I kind of want to pound my head against something today. Repeatedly.
Reading FDL is just making it worse.
Elsewise (can’t remember where, sorry, lots of reading on this today!) the argument is being made that this leak must come from those favoring Kennedy, because Crawford’s article is a puffball paean to his “jurisprudence.”
I really don’t care about all this. I knew long ago these “conservative” justices, including CJ Oathstumbler, were right-wing GOP hacks. But anything that serves to invalidate their legitimacy is fine by me. They need impeaching, the lot of them, or swamping with another ten enrobed lawgivers.
Jonathan Turley is right: let’s go to 19 on SCOTUS. Now, soon, in fact, and fairly — but we must do something to break this Tyranny of Nine. If learning that they act like eighth-grade whiners in the middle school cafetorium helps to move that argument forward, I’m all for it.
But anyone acting like there are any surprises in this reporting simply has not been paying attention since 12/12/2000.
Robert’s is worried about his legacy.
Up till now he has voted the same as Clarence Thomas – that won’t look good in the history books.
Every other advanced country has socialized healthcare (or highly regulated, competitive, private insurance), for all citizens, where costs are half that in the US with better outcomes.
Don’t fall for this kabuki theater.
They are all corporatists.
They were never going to let this bail out for health insurance and pharma companies go down.
Never.
Keep the Rightwing and the Leftwing guessing, appeased, confused, grateful, scared, this is all theater people.
I don’t think CJ Oathstumbler is stupid or craven: he’s simply bought and paid for. Anyone who could clerk for the idiot Rehnquist and not run screaming from the room has unbounded, unbridled ambition. And has been rewarded for his service to the Owners with this for-life position from which he cannot be removed.
I don’t entirely agree with the Michael Savage approach (“CJ’s epilepsy meds make him crazy!”) but as I said earlier, anything that discredits these hacks with the American people is fine by me. If Oathstumbler’s concern for his legacy at this young age means that he sees a sooner end to his tenure, perhaps for health reasons or even earlier death than he expected, then I say: too bad, so sad. Despite his switchup on health care — and who is to say his initial joinup with the RW on the court and eventual switch wasn’t the strategy of a much smarter man than the others, in hopes of bringing at least one of them along with him? — he’ll be remembered for one thing.
Citizens United is Roberts’ legacy, no matter how many decades he serves atop the most secretive, corrupt, politicized SCOTUS America has ever had.
I think it’s all clear as mud.
I think I’ll just wait for the movie.
Kris, don’t kill the messenger.
You know what Winston Churchill said, “America will always do the right thing, after they have tried everything else.”
Did he switch? Orrrr, did he simply fail to switch back?
Right thing. Not the correct thing.
Ah HA! Maybe it’s just as simple as that.
Exactly. This is what i believe too.
Eh? Roberts got a phone call from Guido who “works” for BigIns with a big fat “reminder” about who BUYS him off and what’d happen to Roberts’ kneecaps if he didn’t write the opinion the way he did….
OTOH, also agree: Kabuki Show.
Bullshit that the conservative HACK SCOTUS “judges” are all “upset” or up in arms or something. Get real. They all played the roles that the 1% pays them to play.
Gimme a break. Teh stoopit blah blah blah. This outcome was a slam-dunk from the beginning.
… not that we didn’t know it already, but… yeah.
edit
CBS will hyperventilate over this “scoop”. As if anyone outside the Beltway or NYC gives a hoot.
Is the White House issuing another whistle-blower investigation, into this leak? ;-)
I find it odd that the two sides of the SC were, basically, all-or-nothing. Had Roberts joined his RW buddies in striking the whole enchilada down, he could kiss the remnants of his “umpire” facade goodbye, and the “Roberts’ court” would be the judicial joke in the history books.
Just like the slave owners? Who wins here? Corporations? People?
Teddy:
CJ Oathstumbler is, and always will be, a Chamber of Commerce Con. Given a choice between the Teahadists, and the Chamber, he will always, always chose the Chamber. Remember, the insurance companies want the mandate. It brings them millions of new customers and government cash to boot. I doubt Roberts really switched. The stupid Cons are just surprised that he took the Chamber’s side(though they can’t admit it since otherwise they hate Obama with the heat of 1,000 suns) over theirs. Just look where Roberts’ private sector experience was.
All the benefits for Americans which provide protection from corporations should have been upheld. Robert’s rationale is bogus. ACA did not pro-port to use congress’s tax and spend, use tax code as mechanism for mandate. He made it up just like Taney made up Dred Scott, embracing racist bullshit! Where is the language in the ACA saying use of tax code as a TAX is permissible. It does not exist. They struck down ICC as mechanics for mandate!
Many is “Massachusetts” said it was a “”tax”" as far back as 1994. MADOR railroaded people using as a “punitive financial penalty,” to coerce citizens into contracts with the tax exempt insurers like BCBS. They dismissed cased against DOR all saying is was a fee not a tax? All our elected official lied when they said it was not a punitive tax? Just a fee or penalty?? Well guess what? They where all wrong including Mitt/Brown and the rest of the bought Beacon Hill dirt-bags, some sitting in jail. Roberts just sent a torpedo in to the bow of a ship floating on bullshit!
Abolish state based health insurance corporations as we abolished slave owners and ended segregation. Might have one problem. The corporations might act as did the slave owners or segregation’s as the rule of law sought to protect all Americans from state based abuses, under the color of law! We are all now considered property to be insured because we have a life?
How sophomoric, no even worse, of the conservative branch.
The rallying cry is “Do it
myour way orIwe will takemyour marbles and go home!That Toobin piece was just awful, typical loyal Democrat drivel that’s front page in that magazine every week. I’ve cancelled my subscription until a Republican President returns, and the New Yorker finds its spine again.
Don’t forget the dirty hippies, MovOn, ACORN, the New Black Panthers, George Soros, MSNBC….I’m sure there are more you could add to your list curly!
Obama in the law :taxes disguised as penalty,the word in the law says and writes “penalty”,the judge erased it and wrote “tax”,Obama wanted to be a hidden tax,and now is an open tax,but scared of repercusions of the word “tax”,Obama used penalty and left the rest to the “wise” judge that rewrote the law his way pleasing Obama.
Screw up people with the mandate(obligation to buy a product for profit)instead of medicare or universal(very convenient),however,the ‘wise” judge struck Medicaid’s obligation by states(even worse),leaving poor people at their own peril,if the states opt out there won’t be medicaid,nothing would change for medicaid recipients.Then what the hell this judge did?
corporations better than people..tha’s the whole law about.
The Republican Party, as one of two legacy parties, is on its way out the door, especially when viewed from the Sonoran Desert. As such, the ruling on ACA, is just a temporary set back from the view of this Progressive.
Therefore, the Conservative “schism” at the SCOTUS, just goes to prove that the historians of the future are not going to take kindly to any political blind obedience personified by the Federalist Scoiety. And needless to say, the “Old and Tired White Dudes” have yet to have their history written by these Historians, when these historians are the “majority-minority” and these “new” Taney’s of the Trash Bin of History, becomes widely recognized for being second-rate cognoscenti of the Rule of Law.
Jaango
Concisely analyzed and stated. Apparently, despite the recent evidence that the Corporate SCOTUS votes in the favor of Corporations, many people attribute their rulings in terms of liberal vs. conservative when they are just corporate. Much like the labels applied to the MSM. Partisanship is a neurological disorder.
Aren’t there two corporate entities that are exempt from anti-monopoly laws, the insurance industry and MLB? Supposedly the insurance companies operate “independently” in each state. If so, this absurd ruling that exempts the “protection racket” known as the Insurance Industry needs to be repealed.
Spot on Holeybuybull!!!!!
DING DING DING! Clay just floored Sonny, with a ghost punch!
Once a person accepts the media take on the issues, people and the republic lose, while corporation win. Corporate media plays Americans, like Hitler played brownshirts?
I call it corporate fascism. American style
Affix the hat worn by Jefferson, to your head!!! After all the 4th is Wednesday. Understand why we celebrate it the 4th. That hat, it will fall off you head. My head is much to small. However I do understand clearly the threat to citizens and the republic posed by monopolies in commerce. Monopolies protected by government via the undue influence of corporate money. The very “monied interests,” Jefferson wanted crushed.
The other day America was leveraged into servitude to state based health insurance monopolies, many of which operate at considerable profit, with tax exempt status, as public charities.
This was worse than Dred Scott. It is more insidious and more sinister. All the good thing in the Act should have been upheld. The Court should delayed the law implementation and it sent back to Congress to find a equitable efficient and fair way to TAX and pay for healthcare services. Services required to have a decent life, opposed to perpetual servitude to state based corporate insurers, under fear of coerce punitive financial penalty, now deemed a tax, as Scott was deemed Property? WTF!!! The New American Life Tax….
I propose a small tax on all Wall Street transactions and a cogent energy policy, to reduce the cost of energy and increased efficiency in use of fossil fuel potential energy to lower tho cost of all goods and services transported. Like that Erie Canal which it said to have reduced transport cost by 95%??? Maybe between the two America can liberate itself from the “Enthroned Corporations,” who can buy law with the money extracted from Americans, who seem to have no representation in Congress because of monied influence. Like a Slave or woman who can’t testify on an D. Issa committee hearing, on birth control. Time to shut down my brain’s neurological disorder. Sleep….
Too life. Fuck servitude!
AMA HEALTH INSURANCE COMPETITION STUDY STATE BY STATE MKT SHARE
STATE AG’s PUBLIC CHARITIES LISTING EVERY STATE IN UNION
1099 IRS FILINGS EXEMPT CORPORATE DIVISION
REGISTERED FOR PROFIT HEALTH INSURANCE CORPS
EACH STATE
Would you like to set a blaze a Christmas Tree which has been sitting in the sun since January 1, 2012.
I do not agree the ACA should have be struck down entirely. It fact it should be amended as I say.
Justice and equity fucking require(d) it!
What continues to confound me is that even after the revelation that the MSM was catapulting the propaganda in.re. the officially approved lies used by the government to justify the illegal Iraq invasion and occupation, the sheeple refuse to question the misinformation they’re fed by the corporate MSM in.re. Libya, Syria, etc., etc. I guess that’s what constitutes American “exceptionalism”(ignorance), as if America is synonymous with the USA and the rest of the nations of America don’t even exist.
I think I’m going to opt for an easier solution to resolve the problems of the Corporate/Fascist security state and the lack of affordable health care without the obscene profit motive. Emigration to a nation that actually exists for the benefit of its citizens and respects privacy, deplores military solutions, and realizes that health care is a right.
There isn’t the slightest bit of tolerance in the Republican party for the slightest deviation from the party line. I wonder if the shunning of Roberts will open his mind to how he essentially had allied himself with the forces of evil until a month ago.
Although I think Roberts used good reasoning in reaching his opinion, I wonder if he was motivated more by his conscience or the desire to protect the health insurance industry.
They’re not that smart. Really, they’re not. They just cheat more.
Scalia is indeed that mean and conniving and only superficially bright, and his reputation as an intellectual is about as deserved as Paul Ryan’s.
But what really is the party line, save for tax cuts for the rich? What rationale does joe six pack use for voting these people in time after time?