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Further Thoughts On The Roberts “Switched Vote” Story

Matthew Franck points out that there’s not nearly as much as meets the eye to the “bombshell” report from CBS News reporter Jan Crawford that I wrote about on Sunday:

Many people have seized on Crawford’s report as confirmation of some kind of “betrayal” or “statesmanship” thesis.  Others have wondered, with good reason, how on earth she got such inside dope within three days of the ruling.

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.”

That’s it.  Sadly, for such a talented (and obviously well-placed) reporter, Crawford seems to work hard to achieve a certain effect in her story, namely that Roberts decided as he did for reasons that had nothing to do with the merits of the arguments in the case.  But there is one commendably honest admission (in the 21st of 60 paragraphs) on Crawford’s part that “It is not known why Roberts changed his view on the mandate and decided to uphold the law.”

As Franck goes on to point out, Crawford doesn’t know the reason that Roberts switched his vote (assuming he did) and, apparently neither do whomever it might be that were the source(s) for her piece, although it’s clear from the tone of the article that the individual(s) who spoke to Crawford retained no small degree of anger and frustration toward Roberts for changing his mind whatever the reasons might have been. So, unless Chief Justice Roberts himself talks and explains his decision, which he’s unlikely to ever do beyond referring people to the opinion itself, we are, as Franck says left to consider the possibility that Roberts actually meant what he said in the opinion and that he wasn’t merely just making something up to uphold the law because he’d been, say, intimidated by public pressure. Franck then goe son to say this after re-reading the opinion:

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.  The intensity, passion, and frequent fallaciousness of the criticism aimed in his direction suggest that for many of his critics, it has always been the result that matters-the fall of ObamaCare-rather than the integrity of legal reasoning.

More importantly as Franck goes on to point out, and as Allahpundit argues, there’s just something not quite plausible about the “Roberts got scared” theory that many on the right seem to be buying lock, stock, and barrel even though there’s absolutely no evidence for it. For one thing, Roberts has shown now compunction in the past about being part of a majority that would be viewed controversially by the media and the “inside the Beltway” crowd. One need only look at the gun control cases (District of Columbia v. Heller and Chicago v. McCormack) or Citizens United for evidence of that. Why would he suddenly be so concerned now about what the media elite or the New York Times Editorial Board thinks of him or the Court? It just doesn’t make sense. More importantly, even if he was going to rule in this case based on his concerns about public opinion, he certainly did it in an amateurish and stupid manner, and John Roberts just doesn’t strike me as a stupid man. That makes it all the more plausible that Roberts ruled the way he did because he genuinely believed the argument to be correct and because, as I stated last week, he believed it was proper for him exercise what he viewed as judicial restraint in this matter. As Franck says, those on the right attacking him now are revealing quite clearly that the are motivated not by an honest criticism of the legal reason the Chief Justice used in his opinion, but because all along it’s only been the result, not the law, that matters to them.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Marla Hughes says:

    Thank you Doug.
    I finally just stopped responding to my friends on the right who were/are up in arms over the SCOTUS decision. I read the dissent and agreed with their premise, but IMO they ignored the fact that precedence has to be honored. Roberts did not.

    Like or Dislike: Thumb up 5 Thumb down 1

  2. OzarkHillbilly says:

    those on the right attacking him now are revealing quite clearly that the are motivated not by an honest criticism of the legal reason the Chief Justice used in his opinion, but because all along it’s only been the result, not the law, that matters to them.

    A pretty fair description of today’s GOP, I would say.

    Like or Dislike: Thumb up 14 Thumb down 3

  3. Tsar Nicholas says:

    Well, I think you have to keep in mind that the most shrill attacks against Roberts are emanating from the fever swamp segment of the right side of the spectrum. In the fever swamps they wouldn’t know the commerce clause from the Department of Commerce. We’re not talking here about the sharpest tools in the shed and even a 1L student still wet behind the ears would have 10x the legal knowledge.

    In any event, the remedy here is pretty f’n simple: Romney + 51 + House would = full repeal. It’ll be interesting — in the vein of a train wreck — to see whether the shrill and angry right figures that out. It’s entirely possible they won’t.

    Like or Dislike: Thumb up 7 Thumb down 1

  4. Fiona says:

    From conservative darling to resident evil–the today’s American right does not hesitate to villianize anybody who dares stray from their dogmatic view of the world. This is why they’re so freakin’ scary. They have no interest in democracy or rule of law in their quest to impose their viewpoints on the rest of the country.

    Highly-rated. Helpful or Unhelpful: Thumb up 23 Thumb down 3

  5. G.A. says:

    They have no interest in democracy or rule of law in their quest to impose their viewpoints on the rest of the country.

    lol, thats why one of us just helped four liberals destroy one of the big reasons why we had a freaking revolution. Rule of law lol, Democracy..damn I hate that stupid fuzzy word…freaking interpretation of the winds of political correctness worldview is more like it…Whatever, have a good independence day 4th of July everyone…..

    Oh and thanks for being understanding and letting me vent…

    Poorly-rated. Helpful or Unhelpful: Thumb up 2 Thumb down 26

  6. PD Shaw says:

    “Why would he suddenly be so concerned now about what the media elite or the New York Times Editorial Board thinks of him or the Court?”

    It’s the “nth Inside the Beltway cocktail party”. Every conservative has a certain tolerance to the cocktail party crowd, which eventually beat them down, we just don’t know that tolerance level.

    Stevens was a reliable conservative for years who upheld corporate rights to buy elections until he attended a Ted Kennedy bash in the Hamptons.

    Souter voted with Scalia 85% of the time until he accidentally attended a K-Street party in a building that he thought sold fountain pens.

    Luckily, Thomas never gets invited anywhere.

    Like or Dislike: Thumb up 6 Thumb down 0

  7. al-Ameda says:

    I read this morning where Georgetown University law professor Randy Barnett (considered to be the architect of the anti-ACA legal strategy) basically said, that Bush -Gore is an example of a decision the left didn’t respect because the left thought it was political motivated, and this decision will serve to undermine the legitimacy of the Court.

    He might be right, however I don’t recall that conservatives had misgivings over the “perception” problems that the Court might take on with respect to Bush-Gore. We live in intensely partisan political times and the Court, for better or for worse, operates in this political environment.

    Like or Dislike: Thumb up 7 Thumb down 1

  8. I think what we’re seeing is that, aside from the legal question, the right didn’t have a strong, cohesive, criticism of the ACA.

    So they respond to legal resolution badly. They basically try to re-litigate in public opinion. That’s not something that I think will play for long.

    The wind will be out of those sails in a few weeks.

    Like or Dislike: Thumb up 5 Thumb down 0

  9. Lomax says:

    I have already given my theories about this. One thing is certain: something happened to make the change. This ruling proves one thing: the existence of parallel universes. I am still sticking to the “persuasion” theory.
    Here are words used in news stories since last Thursday: “Legal scholars baffled over Court ruling”. “Bizarre”, “incoherent”, “lacks any precedent”, “unclear”, “strange”,

    Like or Dislike: Thumb up 3 Thumb down 1

  10. MBunge says:

    @Lomax: “Here are words used in news stories since last Thursday: “Legal scholars baffled over Court ruling”. “Bizarre”, “incoherent”, “lacks any precedent”, “unclear”, “strange””

    I believe all those comments were applied to the conservative argument against ACA and “legal scholars” was meant ironically.

    Mike

    Like or Dislike: Thumb up 5 Thumb down 0

  11. Scott O says:

    @Lomax: If you add the numerical value of those words and divide by the hypotenuse from the pyramid on a dollar bill, then arrange the results in a 666 by 666 grid, superimpose a swastika, the letters that appear spell “Bilderberg” and “new world order”.

    Like or Dislike: Thumb up 5 Thumb down 0

  12. rudderpedals says:

    Franck is being churlish here. Bit of jealousy? Can’t wait to read Crawford’s book about this. It sounds like Mean Girls in robes. No one read The Brethren for the law…

    Like or Dislike: Thumb up 0 Thumb down 0

  13. C. Clavin says:

    “…frequent fallaciousness…”

    That about explains the Republicans of this era.
    For more on refer to:
    http://www.outsidethebeltway.com/is-the-ppaca-the-biggest-tax-increase-in-history-not-even-close/

    Like or Dislike: Thumb up 1 Thumb down 1

  14. David M says:

    I viewed the story less about Roberts than the other GOP members of the court. If they were willing to leak this, they really were angry with Roberts, so much so they were willing to be extremely unprofessional. It’s also amusing that all the conservative handwringing about liberals pressuring the chief justice, was actually those conservatives doing exactly what they were claiming to be protesting about and trying to pressure Roberts to strike down the law.

    Kudos all around for the GOP performances here, their behavior has really made them look like tools throughout the entire process.

    Like or Dislike: Thumb up 8 Thumb down 1

  15. wr says:

    I really don’t understand the confusion about Roberts. He’s not a doctrinaire Republican like Scalia or Thomas. He’s a pure corporatist. Whatever the CEOs of multinational corporations want is what he delivers — has he ever taken sides against the US Chamber of Commerce?

    And in this case, the Chamber (and AHIP) were on the side of the administration, because they knew what Teatards and other mouthbreathers don’t — there’s a ton of profit for everyone in Obamacare.

    So Roberts stays true to his core beliefs — that the only “people” who matter are corporations. Why the shock? Did the right wingers actually think he gave a damn about what they believe?

    Like or Dislike: Thumb up 7 Thumb down 3

  16. G.A. says:

    It’s also amusing that all the conservative hand wringing about liberals pressuring the chief justice, was actually those conservatives doing exactly what they were claiming to be protesting about and trying to pressure Roberts to strike down the law.

    uggg..er..um. we believe in the ******** constitution and liberals hate the ******* thing..Is the point you might be missing in this observation?We try to get ALL judges to follow it and do their ******* constitutionally mandated *******JOB!!!!

    And no I am not swearing, I have just been making it look that way for a while now, lol….a long while……

    lol, look at me, lol, I could be Chief ****** ******* Justice….

    Like or Dislike: Thumb up 0 Thumb down 10

  17. G.A. says:

    If you add the numerical value of those words and divide by the hypotenuse from the pyramid on a dollar bill, then arrange the results in a 666 by 666 grid, superimpose a swastika, the letters that appear spell “Bilderberg” and “new world order”.

    That’s funny but don’t go and accidentally unlock the ****** ******* pit of hell before I get to go see Iron Maiden tomorrow and have me some BBQ.

    Freaking Alice Copper is opening for them at Summerfest and it cost me a 1/4 of my weekly salary for the ticket….

    Like or Dislike: Thumb up 0 Thumb down 1

  18. @OzarkHillbilly: The liberals are like this as well (see: Citizen’s United). And I say that as someone who read that ruling, read Doug’s analysis, and still disagree.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. Scott O says:

    @G.A.: Enjoy the Satanic festival

    Like or Dislike: Thumb up 0 Thumb down 0

  20. G.A. says:

    Enjoy the Satanic festival

    lol, thanks man….

    You do know that most every gathering today is one right?

    lol Even coming to OTB to bash God every other day…. lol, what do you think trying to drive home a secular(anti Christ) message here every day is?

    Like or Dislike: Thumb up 0 Thumb down 2

  21. OzarkHillbilly says:

    @Christopher Bowen: Chris, do corporations bleed? Yes or no….

    Animal or not.

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