Did Roberts really switch his vote for political reasons?

posted at 8:21 pm on July 2, 2012 by Allahpundit

At Bench Memos, Matthew Franck makes the case that there’s less to yesterday’s CBS bombshell than meets the eye:

But what does Crawford actually claim to know? Just the following:

that Roberts held one view in March, and a different one in May;

that one or more of the four conservative justices, notably including Kennedy, tried to win him back to their view;

that a month of trying to persuade him failed;

that Chief Justice Roberts “pays attention to media coverage.”…

This morning I reread the portions of Chief Justice Roberts’ opinion, and the dissenters’ opinion, pertaining to the taxing-power issue over the mandate. The second time around, I am more convinced than ever that Roberts has a fully plausible case that can be defended on principled grounds. That is not the same as an endorsement of its merits on my part, over against the dissenters’ view. But I do think that people might, just might, give him some credit for doing his duty to the rule of law as he understands it.

Another thing, says Franck: If Roberts ruled the way he did for purely political reasons, he was awfully dumb to do it so transparently, no? By switching late in the game and pissing off the conservative bloc, he all but assured the sort of irritated whispers that landed on CBS’s website yesterday, which will end up undermining his and the Court’s legitimacy. Totally counterproductive for a jurist-politician who’s concerned with the judiciary’s institutional credibility, which is why Franck thinks maybe he really did end up ruling on the merits. I don’t quite buy that, but he’s right that the “Roberts got scared” theory depends in part on the chief being an idiot, which no one believes. Surely Roberts realized from the beginning that there’d be a ferocious media campaign for the Court to uphold ObamaCare; the thought of the chief justice, who’s spent his entire career inside the Beltway, somehow underestimating the motives of the political press corps in a case this big is unfathomable. Was he watching “Hardball” one night in May when it suddenly occurred to him that if he rules the wrong way, the Times and MSNBC would call him a hack?

Don’t forget, either, that he’s stared them down before. Roberts voted with the right in the Heller case, which found an individual right to bear arms in the Second Amendment, and in Citizens United. He’s not afraid to break the media’s tender Democratic heart, and he had plenty of political cover to do it again here since Mr. Moderate himself, Anthony Kennedy, was firmly on the side of striking down the law. (Had Roberts stuck with his initial vote, it’s probably Kennedy who would have drawn most of the left’s opprobrium in the aftermath of the ruling.) Also, contra Ace, I don’t think his O-Care decision heralds a new dark age of 5-4 liberal decisions. If he had wanted to fully ingratiate himself with the left, he had an easy route: Simply join the four liberals in finding that the mandate was constitutional under the Commerce Clause too. He refused, even after the conservative bloc was so annoyed with him that they refused to acknowledge his opinion in their own draft. All of which is to say that if Roberts switched for political reasons, I don’t think it’s because he cares about Beltway cocktail parties. He cares that the Court be perceived as a nonpartisan/impartial broker and a huge surprise on a landmark case that everyone figured for a party-line vote is one way to do that. That doesn’t justify him voting for political reasons, assuming that he did, but I think it’s more complicated than Roberts wanting to impress the liberal intelligentsia.

My problem with Franck’s theory is that it doesn’t explain the tone of the conservative opinion. They were obviously royally ticked off; in her CBS piece, Jan Crawford notes how unusual it was that the dissent was unsigned and cites sources claiming that the four justices deliberately omitted references to Roberts in order to signal that they “no longer wished to engage in debate with him.” Over the weekend, Mark Levin flagged the fact that the four refused to join Roberts’s opinion even on the key point on which they agreed, that the mandate is an unconstitutional use of the Commerce Clause. The opinion seems to have been written as an expression of aggravation, all the more so in light of the quick leaks from the Court about Roberts flipping. Simple question, then: If Scalia, Kennedy, Thomas, and Alito thought that Roberts had switched his vote in good faith, because he had honestly seen the merits of the tax argument, would they still have gone this route? Kennedy himself famously switched his vote in the Casey case that upheld Roe 20 years ago; for him to join a dissent that treated Roberts as if he wasn’t worth taking seriously suggests something unusual was going on, as if they thought his motives were illegitimate too and wanted to convey that by refusing to engage with his arguments. (Crawford writes, with exquisite vagueness, “At least one conservative justice tried to get him to explain it, but was unsatisfied with the response.” Unsatisfied with Roberts’s legal reasoning or unsatisfied with his apparent motive?) Hard for me to believe they would have shown this much pique, even in a big case, simply because Roberts flipped.

I think Jonathan Adler’s theory makes the most sense. Roberts didn’t get cold feet because he was worried about a nasty article about him appearing in The Nation, he did it because he couldn’t bring himself to torpedo a democratically-passed law this prominent, especially with voters able to elect a legislature devoted to repeal four months from now. That’s not an excuse — the guy had to re-write the statute to find that way on the tax question — just an explanation. Exit question via Orin Kerr: Who leaked?


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Comment pages: 1 2

The guy whimped out plain and simple.

He checked his cajones at the door.

gophergirl on July 2, 2012 at 8:24 PM

Exit question via Orin Kerr: Who leaked?

Justices Kagan and Sotomayor obviously.

nobar on July 2, 2012 at 8:25 PM

I’m with Savage. Roberts needs to up his meds.

entropent on July 2, 2012 at 8:25 PM

His concern should be to the Constitution, not politics or the court’s image

Donald Draper on July 2, 2012 at 8:26 PM

Did Roberts really switch his vote for political reasons?

No..
He liked the fit of the Red Coat…
Via Savage.

Electrongod on July 2, 2012 at 8:27 PM

Exit question via Orin Kerr: Who leaked?

Justices Kagan and Sotomayor obviously.

nobar on July 2, 2012 at 8:25 PM

..here is an even more haunting question: do you suppose Obama knew?

Thoughts like this conjure up that hyper-creepy close-up of Obama half-winking that Ed and AP like to run on HG from time to time.

*shudder*

The War Planner on July 2, 2012 at 8:28 PM

he did it because he couldn’t bring himself to torpedo a democratically-passed law this prominent, especially with voters able to elect a legislature devoted to repeal four months from now. That’s not an excuse — the guy had to re-write the statute to find that way on the tax question — just an explanation.

You and I have different ideas what passes as democratically-passed law. There was nothing democratic in the cornhusker kickback, the deal with Bart Stupek, the walking around money to certain re-election funds, the “you need to pass the bill to see what is in it, and all the rest. This was a dirty deal from the beginning and there is no excuse for Roberts to sit down and re-write a supposedly “democratically passed law” When does one guy in the judiciary get to do that without it being labeled what it is- judicial activism?

Happy Nomad on July 2, 2012 at 8:28 PM

What does it matter, in the end? He stabbed us, the entire country, and untold future generations in the back. I really don’t give a damn why he did it.

Cylor on July 2, 2012 at 8:28 PM

Roberts didn’t get cold feet because he was worried about a nasty article about him appearing in The Nation, he did it because he couldn’t bring himself to torpedo a democratically-passed law this prominent,

Then he shirked his duty and must answer for same. The Supreme Court is not supposed to be a body of solemnity or be insulated from controversy, which is precisely why justices have lifetime tenure.

If the mandate is unconstitutional – and Roberts clearly thought so – he had to find it so and invalidate the law. For the love of God, that’s what we pay him to do – to restrain the elected branches of government by the Constitution.

There’s neither a valid excuse nor a valid reason for switching his vote. Roberts did wrong by everyone who believes that the Constitution is more than a loosely-collected set of guidelines to be ignored at a whim.

KingGold on July 2, 2012 at 8:28 PM

Thomas, Kennedy, Scalia and Alito did not agree with Roberts’ reasoning that the mandate was a tax. Nor did the four liberal Justices. Nor did the Obama Administration, Congressional Democrats, or supporters like liberal law professors, Hollywood and the press.

Roberts is the only one who claims the mandate is a tax – the only one. And the only reason he did is because he knew that is the only way it would be constitutional.

Does that not disturb you – the mandate is now law because it was called a tax by just one man? With the eight other Justices in agreement that it is not a tax? Forget the Imperial Presidency: we now have the Imperial Chief Justice who can rewrite and pass laws by himself!

Of Course the decision was POLITICAL

Raquel Pinkbullet on July 2, 2012 at 8:29 PM

Squaring a circle is hard thing to defend…it’s is a tax when I say it is and it is not a tax when I say it is not…?

d1carter on July 2, 2012 at 8:30 PM

Lord, give us strength!!

theaddora on July 2, 2012 at 8:30 PM

Clearly Roberts made a political decision to endorse BoCareTax……..how else can you explain the pathetic, illogical and contradictory opinion he wrote with crayons? He is a disgrace. Historians will not treat him well.

David in ATL on July 2, 2012 at 8:30 PM

What Roberts was concerned about was not having his Court packed with liberals, or watch whatever sick maneuver 0bama had planned for a ruling that didn’t go his way. Even if we managed to rid ourselves of 0bama, the precedent would still be there to diminish the Court at some critical juncture.

Sekhmet on July 2, 2012 at 8:30 PM

A Supreme court justice intimidated? Who would do that?

Speakup on July 2, 2012 at 8:32 PM

His concern should be to the Constitution, not politics or the court’s image

Donald Draper on July 2, 2012 at 8:26 PM

Yes and no. The Constitution should be the primary concern but Roberts, as Chief Justice, has a responsibility for upholding judicial integrity. This is far more than things like “image.” In this regard, Roberts failed at his job and I think it will come back to haunt him and will devalue the SCOTUS in future rulings.

Happy Nomad on July 2, 2012 at 8:32 PM

Simple question, then: If Scalia, Kennedy, Thomas, and Alito thought that Roberts had switched his vote in good faith, because he had honestly seen the merits of the tax argument, would they still have gone this route?

No, they wouldn’t have. Their dissent, the leaks, and Roberts’ painfully tortured decision all point to a political decision where Roberts chose the outcome he wanted and figured out a way to get there.

BadgerHawk on July 2, 2012 at 8:32 PM

KingGold on July 2, 2012 at 8:28 PM

You are right. Roberts was wrong, wrong, wrong.

BetseyRoss on July 2, 2012 at 8:32 PM

There’s a theory in the conservative blogosphere that Roberts’ decision will somehow earn him political capital and make it more difficult to smear him as a right-wing extremist when he goes the other way (the right way) in a future case, say, on affirmative action, or religious liberty, or abortion, or on some different attempt to impose government hyper-regulation via the Commerce Clause.

Well, maybe. But if we know anything about the Guantanamo bad when Bush in charge/Guantanamo good when Obama in charge Left, it’s that they have very, very short and selective memories.

And the MSM, which essentially is the Left for all intents and purposes, are the worst offenders. We’ll be in Orwellian territory the next time Roberts steps out of line, because he’ll be lambasted just as if this never happened.

Raquel Pinkbullet on July 2, 2012 at 8:33 PM

I finally used adblock to block all these smiling pictures of Roberts. Can’t stand looking at them.

Mark1971 on July 2, 2012 at 8:33 PM

Doesn’t matter, nor who told…he is ok, per some article today, with the internals being released…

As you may recall, the destruction of the tea at the Boston Tea Party was an act of violent protest against both the British Crown as well as to the East India Company, which held the monopoly on all the tea that the colonists were forced to buy.

There was no ‘free market’ in tea. The colonists were compelled to buy only the tea supplied by the Crown and its aristo-owned subsidiary, the East India Company. Thus, both the Crown and the Company profited from the monopoly.

Additionally, due to the Currency Acts of 1751, 1764, and 1773, colonial scrip was no longer used as a mechanism of payment for the tax and the tea, thus squeezing the money supply of British Pounds, gold and silver, and Spanish Dollars.

To quote Ben Franklin:

All debts public and private could only be paid with “proper” English money, but the issuance of it into circulation in the colonies was stringently controlled by the Bank of England. Benjamin Franklin described the result:
“In one year, the conditions were so reversed that the era of prosperity ended, and a depression set in, to the extent that the streets of the Colonies were filled with unemployed.”
Source: The Silver Bomb, [McDonald & Whitestone]

The result of all this pre-Revolution taxation abuse was the inculcation into our Constitution the notion of limited taxation powers granted to Congress, in three forms only:

1. A direct tax, which must be apportioned,
2. An indirect tax [such as an excise or 'event-oriented' tax] which is voluntary, like a sales tax.
and
3. by the 16th Amendment, an Income Tax.

By judicial fiat, the Roberts Court has created and conferred an extra-Constitutional unlimited taxation power upon the Congress.

This new power is exactly like the taxing power of old; the power of applying a mandatory, non-apportioned direct tax upon all citizens, based upon an indirect-tax construct, that enriches a set of private, government-sanctioned monopolies as well as the government itself, and sets up a bureaucracy that can freely grant exceptions and immunities to politically connected favorites.

The lawless injustice of the Roberts decision and its future destructive consequences are immeasurable.

Beyond the scope of the ‘Affordable’ ‘Care’ Act, aka Obama’care’, aka ObamaTax, is now the standing taxing authority granted to Congress to duplicate this taxing methodology to any part of human behavior that can be imagined.

The ballot box is now considered the mechanism that can be best used to reverse an out-of-control and lawless government bent upon trashing the Constitution.

But even with Conservative and principled office holders, a stretch for all, the Roberts decision would still stand, and our Republic would remain damaged and altered.

A Constitutional Amendment to correct this offense would be inadequate, since the Roberts Court has thrown the Rule of Law into the gutter/sewer. There was no- and is no– authority for Roberts to do what he did, yet he did it; and it is now considered “law”.

Obama can’t wait to be re-elected, to repeat, over and over. Make sure he is stopped.

Schadenfreude on July 2, 2012 at 8:34 PM

All day Thursday and Friday I chopped Cabbage for the American Legion Auxiliary 4th of July BBQ. I was depressed and angry. I will forever more see CJ Roberts’ smirk when I look at ahead of cabbage.

Pecos on July 2, 2012 at 8:34 PM

Roberts didn’t get cold feet because he was worried about a nasty article about him appearing in The Nation, he did it because he couldn’t bring himself to torpedo a democratically-passed law this prominent, especially with voters able to elect a legislature devoted to repeal four months from now.

So he wimped out an issue of grave constitutional importance because people can always elect others to repeal the law? That rationale is no better than seeking favor from liberal elites…if it’s unconstitutional, it’s unconstitutional. Period.

changer1701 on July 2, 2012 at 8:35 PM

The temp is rising on Malta…

d1carter on July 2, 2012 at 8:35 PM

“Who leaked?”

Roberts did. All over the conservative Justices. When he allowed them to believe that he was voting with them, go on to assign himself the task of writing the opinion, then change is position simply to protect the INSTITUTION of the THE SUPREME COURT.

Roberts is the Chief Justice of the Supreme Court… NOT its caretaker.

thatsafactjack on July 2, 2012 at 8:35 PM

Have you read this from the end of the dissent? It’s at the third page from the end. http://www.scribd.com/doc/98542817/US-Supreme-Court-Health-Care-Law-Decision

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments.Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

INC on July 2, 2012 at 8:35 PM

I think Jonathan Adler’s theory makes the most sense. Roberts didn’t get cold feet because he was worried about a nasty article about him appearing in The Nation, he did it because he couldn’t bring himself to torpedo a democratically-passed law this prominent,

I don’t buy this. The passing of Obamacare – against the will of the people – was the most corrupt, dishonest process I’ve ever seen.

The fact that the lib media used the term “The Roberts Court” for the first time after this ruling tells me all I need to know. And it’s all got something to do with Obama – and people going out of their way to cover that man’s ass and bail him out.

TarheelBen on July 2, 2012 at 8:36 PM

Is it political if he did it for the reputation of his court? You know one of those “what would the neighbors say?”. Now all the Dems know he’s easy and a cheap date, they will play him like a fiddle.

Cindy Munford on July 2, 2012 at 8:38 PM

Getting real tired of tha pic of CJ Roberts…

OmahaConservative on July 2, 2012 at 8:38 PM

The Constitution should be the primary concern but Roberts, as Chief Justice, has a responsibility for upholding judicial integrity.

Happy Nomad on July 2, 2012 at 8:32 PM

Pshaw. “Judicial integrity” is a fabrication by the media whereby they use positive and negative reporting about the Court to influence decisions, as they just did here. Roberts may have been the instrument, but this is the establishment media’s doing, make no mistake.

The only “judicial integrity” is advice and consent. Presidents pick the justices, who must be confirmed by a vote of the Senate. Full stop. End of line.

KingGold on July 2, 2012 at 8:38 PM

Whether Roberts decided to help obama so that he could gain favor with the liberal media, or simply because he has views the U.S. Constitution in the same fashion as does obama, as a “hindrance to wealth redistribution”, really makes little difference – Roberts clearly made the wrong choice; his position and the manner in which he came to it are indefensible. If Roberts had hoped to protect his own reputation and that of the Supreme Court by siding with obama and refusing to uphold the U.S. Constitution, then he is a complete moron and has brazenly violated his oath; his actions are already having the exact opposite effect, and the damage that he has done to himself, the Supreme Court and America may be irreversible.

Pork-Chop on July 2, 2012 at 8:38 PM

Don’t care, we should be used to it by now. Warren, Brennan, Stevens, Souter. Now Roberts can proudly join this great line of “surprises.”

Funny how the libs always run true to form.

arnold ziffel on July 2, 2012 at 8:39 PM

He found a horse’s head in his bed.

I wouldn’t put it past someone in the Odministration to have threatened Roberts or his family.

Charlemagne on July 2, 2012 at 8:39 PM

Raquel Pinkbullet on July 2, 2012 at 8:33 PM

Honestly, who cares if he bought some wiggle room for some hypothetical future case?

This is likely to be the most important case to come across his desk, ever. And not only did he author a decision giving the federal government vast new power, but he re-wrote the argument in an act of pure judicial activism.

Power corrupts, and Roberts now has a lifetime appointment to a position of absolute power. Will of the people be dammed.

BadgerHawk on July 2, 2012 at 8:40 PM

Good Lord, AP, you think Obamacare was a democratically-passed law? Have we ever had a Bill with fill in the blanks passed before?

Cindy Munford on July 2, 2012 at 8:40 PM

Here’s my exit question. What do you think Harriet Miers would have done?? The little things that change a nation.

rik on July 2, 2012 at 8:40 PM

Roberts is the only one who claims the mandate is a tax – the only one. And the only reason he did is because he knew that is the only way it would be constitutional.

Raquel Pinkbullet on July 2, 2012 at 8:29 PM

Yep.

SparkPlug on July 2, 2012 at 8:43 PM

Here’s my exit question. What do you think Harriet Miers would have done?? The little things that change a nation.

rik on July 2, 2012 at 8:40 PM

This has been asked before. Here was my answer.

As an incompetent Bush crony, not only would she have folded like a cheap suit under half the pressure Roberts faced, she also would have gleefully upheld all of the Bush-signed McCain-Feingold, which would be in force today. Bye-bye super PACS, hello eternal Democratic control.

KingGold on July 2, 2012 at 8:43 PM

All day Thursday and Friday I chopped Cabbage for the American Legion Auxiliary 4th of July BBQ. I was depressed and angry. I will forever more see CJ Roberts’ smirk when I look at ahead of cabbage.

Pecos on July 2, 2012 at 8:34 PM

I think I will have cole slaw for supper tonight. Maybe, it will help relieve my frustrations.

theaddora on July 2, 2012 at 8:43 PM

I think Jonathan Adler’s theory makes the most sense. Roberts didn’t get cold feet because he was worried about a nasty article about him appearing in The Nation, he did it because he couldn’t bring himself to torpedo a democratically-passed law this prominent, especially with voters able to elect a legislature devoted to repeal four months from now. That’s not an excuse — the guy had to re-write the statute to find that way on the tax question — just an explanation.

Roberts was derelict in his duties and should step down. His job is determine whether a law is Constitutional or not.

CW on July 2, 2012 at 8:43 PM

Raquel Pinkbullet on July 2, 2012 at 8:29 PM

Excellent points!

silvernana on July 2, 2012 at 8:44 PM

Did Roberts really switch his vote for political reasons?

Follow the money.

DannoJyd on July 2, 2012 at 8:45 PM

Roberts can stew in his own filth for all I care. He is obviously ill equipped for the position he holds. Why even have lifetime appointments if justices are considering anything OTHER than a statute’s constitutionality? I mean hell, it’s not like they’re going to get fired one way or another. The whole of Washington D.C. is a festering boil and I wish it would just fall into the abyss already.

CantCureStupid on July 2, 2012 at 8:45 PM

It is what it is. The final verdict on ObamaCare rests with the voters in November. That, more than Roberts, will also determine the future of the Supreme Cort.

bayview on July 2, 2012 at 8:45 PM

Roberts can stew in his own filth for all I care. He is obviously ill equipped for the position he holds. Why even have lifetime appointments if justices are considering anything OTHER than a statute’s constitutionality? I mean hell, it’s not like they’re going to get fired one way or another. The whole of Washington D.C. is a festering boil and I wish it would just fall into the abyss already.

CantCureStupid on July 2, 2012 at 8:45 PM

I agree.

SparkPlug on July 2, 2012 at 8:47 PM

Now all the Dems know he’s easy and a cheap date, they will play him like a fiddle.

Cindy Munford on July 2, 2012 at 8:38 PM

Yep. The left savaged him leading up to this decision. Obama called them out in his SOTU when they just had to sit there. He pseudo threatened them by declaring that overturning his achievement would be unprecedented.

And he got down on his knees for them anyway.

The most important lesson the left is taking away from this is to question the legitimacy of the court and to do it often. It’s a lesson they’ll learn well.

Roberts, for all his concern about preserving the courts’ legitimacy, has done significant damage to it with his tortured decision.

BadgerHawk on July 2, 2012 at 8:47 PM

He’s dead to me. As I heard on Bill Bennett on the way to work, he should resign because he’s proven he can be “gotten to” and every decision from him now on will be second guessed. AND as Charles Krauthammer said tonight on O’Reilly if he is influenced by the public’s “choice” and “voting” and “elections”, the Court should shut down and all of them go home. We just vote on every matter.

Marcus on July 2, 2012 at 8:47 PM

KingGold on July 2, 2012 at 8:43 PM

Listen to you!!

rik on July 2, 2012 at 8:48 PM

Exit question via Orin Kerr: Who leaked?

Justices Kagan and Sotomayor obviously.

nobar on July 2, 2012 at 8:25 PM

..here is an even more haunting question: do you suppose Obama knew?

Thoughts like this conjure up that hyper-creepy close-up of Obama half-winking that Ed and AP like to run on HG from time to time.

*shudder*

The War Planner on July 2, 2012 at 8:28 PM

Of course Kagan leaked, she leaked to little Bammie during the case, likely coaching Virilli, sometimes through intermediate Sebelius. This is why she was put on the court!

On the other hand, leaks post-decision to the media are from the White House, via the usual suspects.

slickwillie2001 on July 2, 2012 at 8:49 PM

Roberts, for all his concern about preserving the courts’ legitimacy, has done significant damage to it with his tortured decision.

BadgerHawk on July 2, 2012 at 8:47 PM

Not too many people have much faith in the SCOTUS now. Roberts is the chief court clown.

SparkPlug on July 2, 2012 at 8:49 PM

Marcus on July 2, 2012 at 8:47 PM

You’ll not hear me calling for Roberts’ resignation.

Obama will nominate a disastrous replacement. Of that, there can be absolutely no doubt at all. Roberts may have blown his credibility to bloody giblets, but he’s useful as a placeholder.

KingGold on July 2, 2012 at 8:50 PM

he took it upon himself to rewrite a law he found to be unconstitutional as written. our democracy gives him no such power.that’s playing fast and loose with our freedoms and the restrictions on the power of government. what he did was undemocratic and outside the powers of the supreme court. his reasons for doing so are essentially unimportant because what he did was indefensible.( even though constitutional schalars were left stunned and want to know why.)

he solved and proved nothing by what he did- the democrats are still insisting its not a tax even though roberts alone claims the mandate is unconstitutional as anything but a tax. everyone knows the bill was passed under suspicious and partisan circumstances. MA revoked the kennedy/democrat forever seat over the shenanigans of nan et al. that’s not a democratically passed bill- it’s the opposite. whatever roberts is playing at here he’s created an unconstitutional cluster fark of epic proportions and validated the congress’s right to tax/mandate/penalize/roberts non activity. he further muddied the waters and democrats and barry are NOT accepting it as a tax. they’re acting like they have the power to mandate non-activity. period. roberts might as well wrote a dr. seuss nonsense opinion about cats in hats- those that want the law as is are going to ignore his prattle.

mittens on July 2, 2012 at 8:51 PM

Roberts didn’t get cold feet because he was worried about a nasty article about him appearing in The Nation, he did it because he couldn’t bring himself to torpedo a democratically-passed law this prominent,

So Marbury v. Madison is no longer good law? If a statute was “democratically passed,” then it is constitutional?

The role of the Supreme Court is limited to lawsuits between the states, and there no such thing as judicial review?

Yeah, right.

Wethal on July 2, 2012 at 8:52 PM

If Romney wins… when he’s sworn in… outside… by Roberts… would be a great time to be there and let Roberts know what he should do with his judcial career.

Retire

dforston on July 2, 2012 at 8:52 PM

Roberts opened the door for American’s to be force to comply to whateer the government wants or pay a huge tax. If you think it’s bad with taxes and these taxing fools in Washington, we haven’t seem anything yet! We’re going be tax to oblivion if we do not comply with whatever the government wants.

Zcat on July 2, 2012 at 8:53 PM

I feel for the Constitution in the National Archives.

No one pays any attention to it anymore…

What a waste…

Electrongod on July 2, 2012 at 8:53 PM

he did it because he couldn’t bring himself to torpedo a democratically-passed law this prominent

FIFY

If this had truly been a bipartisan bill, at least 2/3rds of each house of congress this explanation might make sense. As other have earlier in the meme there was nothing democratic about how this bill was passed.

chemman on July 2, 2012 at 8:54 PM

Yeah, right.

Wethal on July 2, 2012 at 8:52 PM

I suspect that Allah was as blindsided as the rest of us, and like the others desperately trying to find some good in the judicial barrel of sh*t Roberts poured on us, he’s finding a way to rationalize Roberts’ flip-flop.

We all went through denial at some point that morning. It’s still going for some people, I guess.

KingGold on July 2, 2012 at 8:56 PM

There’s a theory in the conservative blogosphere that Roberts’ decision will somehow earn him political capital and make it more difficult to smear him as a right-wing extremist when he goes the other way (the right way) in a future case, say, on affirmative action, or religious liberty, or abortion, or on some different attempt to impose government hyper-regulation via the Commerce Clause.

Well, maybe. But if we know anything about the Guantanamo bad when Bush in charge/Guantanamo good when Obama in charge Left, it’s that they have very, very short and selective memories.

And the MSM, which essentially is the Left for all intents and purposes, are the worst offenders. We’ll be in Orwellian territory the next time Roberts steps out of line, because he’ll be lambasted just as if this never happened.

Raquel Pinkbullet on July 2, 2012 at 8:33 PM

Yeah, any conservative ever expecting political capital from liberals in the future, no matter how great the deed, is frighteningly naive. That capital will last only as far as his next conservative decision.

Dongemaharu on July 2, 2012 at 8:56 PM

Of course Kagan leaked, she leaked to little Bammie during the case, likely coaching Virilli, sometimes through intermediate Sebelius. This is why she was put on the court!

On the other hand, leaks post-decision to the media are from the White House, via the usual suspects.

slickwillie2001 on July 2, 2012 at 8:49 PM

..doncha juts hate the smarmy, fast-food, Chicago way our national politics has been transmogrified? As unacceptable and unpleasant as it was before, with this guy and his gangster crowd, it’s like the whole operation — the legislative, executive, and judicial branches have been dipped in a vat of boiling diarrhea.

The War Planner on July 2, 2012 at 8:57 PM

I guess Roberts doesn’t understand the separation of Powers. Obama is not supposed to intimidate the Supreme Court and Roberts is not supposed to succumb to intimidation.

SparkPlug on July 2, 2012 at 9:00 PM

I suppose we’ll never know for sure, but I’d guess he did it out of a combination of reluctance to be seen as political, and a naive belief that he could be the next John Marshall or Solomon or whoever and craft something that brilliantly appeased liberals in the short-run, but moved the court in a more conservative direction.

If real life worked the way pundits like Krauthammer and others think it does, this might have been a good decision. But I’m afraid it just doesn’t.

RINO in Name Only on July 2, 2012 at 9:00 PM

Roberts is what you get when you have a RINO making the appointment and Rinos in the Senate carrying the water. Expect more of the same or worse from Romney if he is lucky enough to beat Obama. The SCOTUS has been littered with liberal justices appointed by the establishment RINOS. Democrats make no bones about their ideologue appointments and one does not see their apppointments coming over to the dark side. We will get no help from Romney. You can take it to the bank. Look at his appointments. Gov. Roberts is a lost cause. He has always been a country club ass kisser and fits right in with the Pub. establishment

they lie on July 2, 2012 at 9:04 PM

My theory:

Roberts actually wrote the conservative (once majority, now dissenting) opinion. Then Roberts flipped and went his own way for reasons that seemed dubious to the other conservative justices. So, the conservative justices (to make their aggravation clear) just made minimal changes to Roberts’ own opinion to fashion the dissent. Therefore, the historical dispute will forever boil down to Robert’s opinion in May vs. his reevaluated “opinion” in June — highlighting his flip flop on this crucial decision. That is my only explanation why the conservative dissent fails to address the majority opinion.

tommylotto on July 2, 2012 at 9:05 PM

Exit question via Orin Kerr: Who leaked?

Clarence Thomas, his wife, or people directly associated with him.

Crawford interviewed him when his book came out a few years ago.

He’s the last guy you would suspect, which is why it was him.

budfox on July 2, 2012 at 9:05 PM

Well this thread won’t bust 100 posts.

Electrongod on July 2, 2012 at 9:06 PM

I’d guess he did it out of a combination of reluctance to be seen as political…

RINO in Name Only on July 2, 2012 at 9:00 PM

By re-writing the law to achieve a desired outcome in a blatant act of judicial activism.

Down twinkles.

BadgerHawk on July 2, 2012 at 9:06 PM

Here’s my exit question. What do you think Harriet Miers would have done?? The little things that change a nation.

rik on July 2, 2012 at 8:40 PM

Indeed, the little things that change a nation. Instead of getting Harriet Miers, we got that left wing hack Sam Alito instead.

/sarc

Mr. MacIan on July 2, 2012 at 9:07 PM

Did Roberts really switch his vote for political reasons?

How do we know that he “switched” it?

minnesoter on July 2, 2012 at 9:07 PM

You intended to harm me, but God intended it for good to accomplish what is now being done, the saving of many lives. Genesis 50:20 NIV

davidk on July 2, 2012 at 9:07 PM

Here’s my exit question. What do you think Harriet Miers would have done?? The little things that change a nation.

rik on July 2, 2012 at 8:40 PM

Unlike Alito, Harriet Miers might have joined with Roberts, and then we’d have a 6-3 ruling upholding Obamacare.

RINO in Name Only on July 2, 2012 at 9:08 PM

And now it begins……Drudge just posted a story about Mitch McConnell telling a group of about 50 people that it will be next to impossible to repeal Obamacare. Anyone surprized?? Is Cryin’ John Boehner next? If this gang isn’t enought to turn your stomach, I don’t know what is.

COME NOVEMBER, VOTE OUT ANY INCUMBENTS!! WE DON’T HAVE TIME TO SORT THEM OUT AND DON’T KNOW WHO IS TRULY CONSERVATIVE AND WHO ISN’T. VOTE CONSERVATIVE BUT PUT NEW PEOPLE IN OFFICE….ONE’S THAT WE HAVE A CHANCE OF CONTROLLING BEFORE THEY’RE CONTAMINATED.

MONACO1121 on July 2, 2012 at 9:08 PM

he did it because he couldn’t bring himself to torpedo a democratically-passed law this prominent

But he was prepared to do exactly that up until a month ago.

He chickened out — an act of judicial cowardice.

farsighted on July 2, 2012 at 9:09 PM

Indeed, the little things that change a nation. Instead of getting Harriet Miers, we got that left wing hack Sam Alito instead.

/sarc

Mr. MacIan on July 2, 2012 at 9:07 PM

Damn, beat me to it.

RINO in Name Only on July 2, 2012 at 9:09 PM

Here’s my exit question. What do you think Harriet Miers would have done?? The little things that change a nation.

rik on July 2, 2012 at 8:40 PM

Now THAT is a superb question.

minnesoter on July 2, 2012 at 9:10 PM

Now if the names where just switch from Roberts with the Majority vs. Kennedy with the Majority to uphold it, oh how thing would be different. The opinion would have been very different that Roberts and more in line with Ginsberg to say it is fine without the twisted logic.

Would the right really be all that mad. Likely not as much. But as has to be one on the “right side” to go across it should rally across the board.

tjexcite on July 2, 2012 at 9:10 PM

Every politician Barackabama has ever encountered has either wimped out or destroyed or both. He’s the luckiest person I have ever witnessed.

SouthernGent on July 2, 2012 at 9:10 PM

It’s not clear yet (wait about four years when some clerks are safely tenured law professors) what his primary reason for flipping was, but I think a secondary one was that he thought (or was told) that he could easily bring Kennedy with him as the sixth vote, so Roberts would not be THE swing vote.

When Kennedy stood firm, this didn’t work. He had to stick with where he was or flip back. (If he’d flipped back, one assume Kagan (or Obama) would have leaked this, and made him the target of more public criticism.

Wethal on July 2, 2012 at 9:11 PM

I wonder how everyone will feel when Roberts hands down a decision that makes Democrats sucidal, like he did with Citzens United…

thebrokenrattle on July 2, 2012 at 9:12 PM

I blame the American voters for ObamaCare. The American people voted overwhelmingly for Dems in 2006 and 2008 and we got ObamaCare. And I have a feeling Obama is gonna get re-elected. So the American people are getting we deserve, unfortunately.

Elections matter.

terryannonline on July 2, 2012 at 9:12 PM

Here’s my exit question. What do you think Harriet Miers would have done?? The little things that change a nation.

rik on July 2, 2012 at 8:40 PM

Harriet Miers would have been in the seat that’s currently occupied by Alito. Not sure how that would have impacted Roberts’ decision making…

joejm65 on July 2, 2012 at 9:13 PM

Oh, wait, that’s right, Miers was tossed in favor of Alito.

Never mind.

minnesoter on July 2, 2012 at 9:13 PM

Another thing, says Franck: If Roberts ruled the way he did for purely political reasons, he was awfully dumb to do it so transparently, no?

Political hackery is, by definition, kind of dumb. That’s true whether the hackery is being committed by Nancy “pass the bill to find out what’s in it” Pelosi or John “I am the law” Roberts.

What we know is that we have a smart, principled opinion by the four conservative justices, a smart, principled opinion by the four liberal justices, and Roberts’ individual opinion that comes out of left field to “save” the mandate as a tax. (The four liberal justices, of course, sign onto that part of his opinion to reach the 5 votes required to uphold the mandate).

Sometimes, if it walks like a duck and quacks like a duck, it is a duck.

Outlander on July 2, 2012 at 9:15 PM

RINO in Name Only on July 2, 2012 at 9:08 PM

Go to the track. You’re wasting your time here.

rik on July 2, 2012 at 9:15 PM

Again, I don’t care what Roberts’ reasons were for betraying his country and his oath of office. That he did is enough to disgrace him. But, from what I can tell, it was likely bad faith. And, while I don’t hold the opinion that he’s an idiot, I’m open to arguments that he is.

And you’re touting his bona fides in bringing up Heller? Kennedy voted for that, too. So, Roberts is significantly to the left of Kennedy? That’s our “best case scenario?” Wonderful.

besser tot als rot on July 2, 2012 at 9:16 PM

MONACO1121 on July 2, 2012 at 9:08 PM

Difficult, yes.

Hennessy of NRO has a good article on this in the WSJ tomorrow’s edition. Yes, we can repeal it. However, to use budget reconciliation, there first needs to be a budget. (The Dems used a three-year old budget to do BR).

So the GOP would first have to pass a budget through Congress and then reconcile it. Apparently, they can’t reconcile the three-year old budget again, or at least that is his take.

So it is not as quick as votes in both houses on 1/21/13, but it can be done.

Wethal on July 2, 2012 at 9:17 PM

IMHO, Roberts originally voted with the conservatives (Scalia, Thomas, Alito, and Kennedy) to strike down the entire law, and Scalia sat down to write what he believed was a majority opinion. The fact that the conservatives’ eventual “dissent” attacked the Ginsburg opinion without ever mentioning Roberts’ opinion that the “penalty” for not respecting the mandate was a “tax” indicates that the conservatives thought Roberts was with them until the last minute, then Roberts caught them flat-footed when he changed his opinion. The conservative Justices didn’t have time to revise their copy as a “dissent”.

None of the liberal Justices tried to argue that the “penalty” was a “tax”–they based their decision on the possibility that someone without health insurance who requires emergency care forces others to pay for it indirectly, and thereby engages in “commerce”.

There was no real majority opinion in this case: there were two groups of four Justices who each wrote a “dissent”, and Roberts, who wrote his own opinion siding with the liberals but using a different argument–siding with the respondents (the Administration) by using an argument the Solicitor General had vigorously denounced.

If Roberts thinks that this “split the baby” decision will win praise for “his” Supreme Court, he’ll have another think coming. He has probably raised the ire of the 55% of voters who want ObamaCare repealed, who will vote in droves for Romney and for conservative Senators to have it repealed. If they win, and Ginsburg and/or Breyer retire, Roberts may find himself surrounded by 5 or 6 conservative Justices who will consistently write majority opinions regardless of what the “Chief” Justice may believe.

Steve Z on July 2, 2012 at 9:17 PM

Anyway, I believe that Roberts is the most timid man to have ever served as Chief Justice of the U.S. Supreme Court.

minnesoter on July 2, 2012 at 9:17 PM

Are we seeing that classic “conservative justice” morphing where the lowly “conservative” judicial caterpillar transforms into a beautiful liberal (life time appointed) butterfly? [*snark*] Earl Warren, William Brennan, David Souter, Harry Blackmun, John Paul Stevens etc., etc. All courted by the left. That subtle steady pressure to be liked seems to work. Maybe it is a form of Stockholm syndrome.
And it’s not just this Obamacare decision. Roberts went 0-for-3 this week. AZ, Stolen Valor, and Obamacare.

Roberts made 3 out of 3 shutty, baseless, wrong, foolish, and highly political decisions this week.

John Roberts is a lemon, not some genius conservative Constitutionalist.

Raquel Pinkbullet on July 2, 2012 at 9:17 PM

the only reason I can see is that he’s gutless, not able to handle the media pressure that the overturn would have brought to his court. so if Republicans don’t take the senate and the presidency then he leaves the nation stuck with an awful bill, one that he deemed unconstitutional. deciding bills based on the election cycle is letting politics get in the way of doing the right thing.

exceller on July 2, 2012 at 9:18 PM

I think Jonathan Adler’s theory makes the most sense…

he did it because he couldn’t bring himself to torpedo a democratically-passed law this prominent, especially with voters able to elect a legislature devoted to repeal four months from now.

Johnathan Alter gets PAID for this kind of stuff?

Well, then, Roberts is an idiot.

Johnny, um, that’s part of the job description. A law passed which is unconstitutional gets shot down. In our Republic, unless I’m missing something, laws are supposed to only be passed *ahem* democratically.

I mean, I’m just a stupid carpenter and I know that much.

Cleombrotus on July 2, 2012 at 9:18 PM

Here’s my exit question. What do you think Harriet Miers would have done?? The little things that change a nation.

rik on July 2, 2012 at 8:40 PM

Harriet Miers would have been in the seat that’s currently occupied by Alito. Not sure how that would have impacted Roberts’ decision making…

joejm65 on July 2, 2012 at 9:13 PM

You’re right. It was Alito’s seat. But, I’m pretty sure that I’d be happier with Mier’s in the seat right now than Roberts. And certainly would have preferred someone like Luttig.

besser tot als rot on July 2, 2012 at 9:18 PM

I wrote this on another thread, but I can’t help but repeat it:

This is not the first time a conservative member of the Supreme Court has disappointed conservatives or produced an opinion that defied comprehension. In Employment Division v. Smith (1990), Justice Scalia (Justice Scalia!!!) wrote the opinion for the majority and essentially eviscerated a century of good, solid Free Exercise jurisprudence. To regain the same level of religious freedom the citizens of the country had before that decision, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 (which was later shot down by the Supreme Court) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000 (because RFRA was shot down). Additionally, because the impact of Employment Division v. Smith was so unthinkably awful, individual states passed their own versions of the Religious Freedom Restoration Act. It was (and is–because we are all still affected by it today) a big deal.

After reading that the mandate/tax had been upheld, I felt like I had had the breath knocked out of me. I checked multiple sources to be sure I was not misunderstanding or imagining the shocking ruling. I can’t explain why Chief Justice Roberts decided the way he did, and I can’t help but wish that he had seen things differently. But giving up on him is premature. (Think where we’d be without Scalia, even given the abominably bad rewriting of Free Exercise history he did in Employment Division v. Smith.)

Bottom line: Sometimes conservative Supreme Court justices get things wrong–even horribly wrong.

butterflies and puppies on July 2, 2012 at 9:19 PM

Sort of long, but I wonder which one John Roberts is; the line or the quiggle.

jaime on July 2, 2012 at 9:19 PM

Honestly, who cares if he bought some wiggle room for some hypothetical future case?

This is likely to be the most important case to come across his desk, ever. And not only did he author a decision giving the federal government vast new power, but he re-wrote the argument in an act of pure judicial activism.

Power corrupts, and Roberts now has a lifetime appointment to a position of absolute power. Will of the people be dammed.

BadgerHawk on July 2, 2012 at 8:40 PM

Oh I completely agree, was just playing devil’s advocate.

Raquel Pinkbullet on July 2, 2012 at 9:19 PM

Am I the only one who knows who will play Roberts in Oliver Stone’s or Spielberg’s or Soderbergh’s next blockbuster ballbuster film?

texacalirose on July 2, 2012 at 9:19 PM

Roberts was getting tired of looking like a fool everytime his
co-cocktailers asked him that most important question :
” What did you do for Obama today ? “and he had no answer .
Once Roberts realized that this O’Scare litigation is the last chance he will probably ever have to ” do something” for Obama,
he decided to contribute.

burrata on July 2, 2012 at 9:21 PM

joejm65 on July 2, 2012 at 9:13 PM
The point is maybe they should have sh!tcan roberts in favor of miers. I don’t know about strikes but I got a hunch Miers knows more about balls than roberts.

rik on July 2, 2012 at 9:22 PM

Bottom line: Sometimes conservative Supreme Court justices get things wrong–even horribly wrong.

butterflies and puppies on July 2, 2012 at 9:19 PM

You make a good point. But this weekend I was so mad I swatted butterflies and kicked a puppy—hard.

I didn’t. I even took in a stray. She’s lucky I was taking a puppy kickin break. :)

arnold ziffel on July 2, 2012 at 9:23 PM

dforston on July 2, 2012 at 8:52 PM

If Romney wins, whens he’s sworn in, he should thank Roberts for this.
Just sayin’.

B Man on July 2, 2012 at 9:23 PM

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