Report: Roberts Switched Positions On The Individual Mandate In May.

A new report will likely add fuel to the fire of conservative outrage over Chief Justice Roberts' decision to uphold the PPACA.

There’s been much speculation in the days since the Supreme Court’s ruling upholding the PPACA that Chief Justice Roberts may have switched his position from one in which he was willing to join the four conservatives in striking down the mandate, and indeed the entire law, to one in which he was willing to join the four liberal Justices to uphold it as constitutional under the Taxing Power. James Joyner, Steven Taylor, and myself have all written about the topic, although my post points out some alternative explanations for how Roberts ended up ruling the way he did that don’t involve a switch. In some sense, this is an entirely academic argument because whether Roberts switched or not is largely irrelevant to the Court’s ruling. It’s mostly of interest, perhaps, as a historical matter and as a clue to how Roberts might rule on cases in which the Court is sharply divided in the future. This morning, though, a reporter for CBS News broke a story that is guaranteed to keep this story out there, and to provide more fuel to conservatives who seem to want to find a conspiracy in the fact that the Chief Justice ruled differently from how they expected he would:

(CBS News) 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.

Here’s how the reporter, Jan Crawford described what happened in the wake of the Court’s historic three days of oral argument in March:

After the historic oral arguments in March, the two knowledgeable sources said, Roberts and the four conservatives were poised to strike down at least the individual mandate. There were other issues being argued – severability and the Medicaid extension – but the mandate was the ballgame.

It required individuals to buy insurance or pay a penalty. Congress had never before in the history of the nation ordered Americans to buy a product from a private company as part of its broad powers to regulate commerce. Opponents argued that the law exceeded Congress’ power under the Constitution, and an Atlanta-based federal appeals court agreed.

The Atlanta-based federal appeals court said Congress didn’t have that kind of expansive power, and it struck down the mandate as unconstitutional.

On this point – Congress’ commerce power – Roberts agreed. In the Court’s private conference immediately after the arguments, he was aligned with the four conservatives to strike down the mandate.

Roberts was less clear on whether that also meant the rest of the law must fall, the source said. The other four conservatives believed that the mandate could not be lopped off from the rest of the law and that, since one key part was unconstitutional, the entire law must be struck down.

Because Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the Court’s historic decision. He kept it for himself.

Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.

(…)

Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

And here’s Crawford discussing the report this morning on Face The Nation:

No doubt this is going just end up throwing gasoline on the fire that has been burning in some conservative circles since Thursday, where words like “Traitor” in reference to Roberts are being tossed around with regularity. Indeed, one conservative blogger already cites this report as evidence that Roberts is a “turncoat.”  There are several ways in which these types of criticisms bother me. First of all, they assume that Roberts was obligated to vote a certain way because he was appointed by a Republican President. If that’s the way these people define the role of a Supreme Court Justice, then it strikes me that it hardly matters that we even have Supreme Court Justices at all. After all, we  can just replace them with a computer that spits out decisions expected from a “Republican” or “Democratic” judge and announce the result accordingly. The job that Roberts, like any judge has, it to rule on the case before him based on the law, which included both the Constitution and past precedent (unless that precedent is found to be incompatible with the Constitution). Making conservatives happy doesn’t appear anywhere on that list, and it’s rather obvious that most of the conservative activist disdain for Roberts over the past several days is merely motivated by the fact that they disagree with how he voted, not because they have any kind of coherent legal argument against the position he took. The second problem with this argument, to the extent it even is an argument, is that it views the law based on a purely political point of view. These people would be quiet if, say, Roberts had decided to switch his vote (assuming that’s what actually happened) from pro-mandate to anti-mandate. Finally, even if it’s true that Roberts switched his vote, so what? The process of how this decision was made isn’t relevant at all, the outcome and the reasoning are. If they think Roberts is wrong in his tax argument, let conservatives point out where his reasoning is wrong rather than trying to impeach his integrity like this.

There are other issues that this report raises, of course. One wonders who Crawford’s source(s) might be for this story, because there’s a fairly limited number of people who would be privy to this kind of information. Outside of the small circle of Supreme Court Justices and their Clerks, who have never been known to speak to the press about the internal operations of the Court in this manner, there really isn’t anyone who would even be close to a credible source for information like this. So, this means that Crawford’s source has to come from one of two groups; either one of the four conservative on the Court, or their Clerks (personally I think it’s far more likely to be a Clerk than a Justice) Whichever one it is, it’s really rather disturbing to me that they would use the cloak of anonymity to attempt to embarrass the Chief Justice in public like this by essentially suggesting that he changed his vote because of outside pressure, rather than because his position on the tax argument had changed. There have been other times when internal Court disputes have become public, the most notable being the Woodward and Bernstein book The Brethren, but it’s still a highly unusual practice and it has never been this blatantly political. Quite honestly, it puts a sadly vindictive end to what had otherwise been a pretty good term for the Court. The Chief Justice is vacationing in Malta right now with his wife, but one imagines this report isn’t going to make him a very happy man.

FILED UNDER: Law and the Courts, US Politics,
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Phillip says:

    one imagines this report isn’t going to make him a very happy man.

    Integrity is a poor tool for making friends. If Roberts was making an intellectually honest decision, I doubt he would fail to anticipate the reaction.

  2. @Phillip:

    I was really referring more to the idea of the Court’s dirty laundry being aired in public. It’s happened before (most notably in connection with the Woodward/Bernstein book The Brethren), but it’s still highly unusual for disputes that occurred in chambers to become this public.

  3. Modulo Myself says:

    This article so neatly summarizes up the conservative world view that I do hope it’s true…in the future, all conservatives should start wearing a Fox News version of the still suit from Dune, so this sort of thing–thinking and reading after making a snap decision–can be prevented.

  4. Xenos says:

    A lefty conspiracy theory about this switch is that Roberts has learned, through his own connections to the wingnut welfare circuit, that Thomas has been even more heavily bribed through payments made to family members than has already been acknowledged.

    Thus, letting the court, by the margin of a single demonstrably corrupt justice, overturn major legislation would put the court itself too much at risk. So when the full story comes out in the next few months Roberts can at least claim ‘no harm – no foul’ as far as the rest of the court is concerned.

  5. @Xenos:

    One of the righty conspiracy theories I’ve seen is that Roberts switched because someone threatened to kill his children. I am not making that up.

  6. Bennett says:

    @Doug Mataconis: Or the one about how his epilepsy medicine has made him crazy/stupid/senile.

  7. Xenos says:

    @Doug Mataconis: The lefty one is pretty much pre-disproven, as the Thomas issue came up a year ago and has gone nowhere since then. It struck me as something that took a fair bit of work to think fantasize up, though, which made it notable.

  8. MM says:

    @Bennett: There’s also one that he’s a closeted gay being blackmailed by Obama.

  9. Hey Norm says:

    It’s clear to me that the radical activism of Thomas and Scalia was a bridge too far for Justice “Balls and Strikes” Roberts. But thats my opinion. And anonymous sources mean bubkis. Until one of these “Politicians in Robes” writes their memoirs we’re all guessing. And maybe even then.

  10. Spartacus says:

    The CBS report contradicts the view that a majority signed on to the Commerce Clause restrictions. Everyone who has read the opinion certainly seems to think that a majority signed on to that.

  11. Jack Moss says:

    “First of all, they assume that Roberts was obligated to vote a certain way because he was appointed by a Republican President. ”

    You’re kidding right? That’s kind of the objective of selection.

    And if Kagan voted in the future to overturn Roe v. Wade?

    Truth is, if true, then Roberts is a moral coward and not worthy of the seat he occupies.

  12. Jack,

    Please share with us your detailed legal brief detailing how Justice Roberts was wrong.

  13. Spartacus says:

    I still think the alternative theory Doug posted the other day seems more plausible.

  14. Dazedandconfused says:

    If it were a real seance with the Founders, I like to think many on the Court would be getting a harsh lecture on common sense. They strike me as having been pragmatic men and not ideologues, anyway. Madison wrote some thing about that IIRC.

    Checking populism has to be a matter of a few “Wise Men”, sitting down and making a call, I guess. We must live with that. I think limiting that role to “passive” is for the best. However wise, the modern world is too complex for any man to master. They are ill-suited for setting policy.

  15. MBunge says:

    The right wing agenda for decades as been to get enough Justices on the Supreme Court to enact a string of conservative Roe v. Wade type decisions that radically alter the established status quo. The closer they got, however, the harder it was to get Justices confirmed who openly and enthusiastically embraced that agenda. The response has been several “stealth” nominees who don’t have a right wing record to use against them, but we now know that Justicies who aren’t committed strongly enough to the conservative agenda to have it on their resume are backing down when it comes to taking that decisive step of overturning the legal principles that have guided public policy for decades or even a century or more. Roberts was happy to do it with Citizens United because, frankly, the public at large didn’t give a damn about it. On health care, and the multitude of other Commerce Clause challenges it would have opened up, Roberts blinked.

    Mike

  16. The right obviously has an interest in keeping ACA about what Roberts “coulda, shoulda, woulda” rather than talking about it as health care.

    I guess we can expect them not to let go easily.

  17. mattb says:

    @Jack Moss:

    “First of all, they assume that Roberts was obligated to vote a certain way because he was appointed by a Republican President. ”

    You’re kidding right? That’s kind of the objective of selection.

    The objective of the selection is not about *obligation* so much as it’s about prediction. The hope of Roberts is that he would regularly side with the republican/conservative side of the argument.

    But no President should believe that a judge is *obligated* to side with them. And there is a long history of Presidents later being disappointed because they confused prediction with obligation in the first place.

    Truth is, if true, then Roberts is a moral coward and not worthy of the seat he occupies.

    And why exactly is he a moral coward if the account is correct. In the process of writing the decision he found that he could not accept it. And so to be intellectually honest he switched his position. Further, I think anyone who returns to his confirmation hearing will find that some of his answers suggests that his type of “conservatism” included a certain deference to Congress and a desire to avoid overturning duly passed *federal* legislation.

  18. PJ says:

    I wonder how Chief Justice Roberts will react to all the hate from the right, especially if it will continue for a long time.

  19. Racehorse says:

    Can we expect the same flip flopperoo when he gets the case of Mayor Bloomberg”s large soft drink laws? What will it be? A penalty, fine, tax, or …….. a Big Mac and super sized fries!

  20. Spartacus says:

    @Racehorse:

    “Can we expect the same flip flopperoo when he gets the case of Mayor Bloomberg”s large soft drink laws?”

    What constitutional issue is raised by Bloomberg’s soft drink laws?

  21. michael reynolds says:

    @john personna:

    The right obviously has an interest in keeping ACA about what Roberts “coulda, shoulda, woulda” rather than talking about it as health care.

    Which leaves Mitt Romney running against John Roberts and attacking him for supporting what is in effect RomneyCare.

    You can’t make this sh*t up.

  22. michael reynolds says:

    I have an alternate theory. It goes like this:

    But why does a particular justice favor one philosophy over another? Often, it has little to do with intellect. Justice Felix Frankfurter once explained, “The words of the Constitution are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life.”

    Thus, John Marshall’s presence at Valley Forge in the winter of 1777-78, as George Washington begged the states to rescue his ragged army because the Continental Congress lacked the authority to compel them to, helped make him a believer in a strong central government. Chief Justice Earl Warren’s shame that his chauffeur slept in the car on an overnight jaunt to Richmond because no hotel would rent a black man a room surely contributed to Warren’s passion for desegregating the nation’s public schools.

    I think maybe, just maybe, Roberts thought for a moment about people forced by the costs of illness into homeless shelters, and people who suffer for years and watch their health worsen because they can’t afford an operation. Maybe he acted like a human being. Unusual for a Republican, I grant you, but not entirely unprecedented.

  23. John Thacker says:

    Please share with us your detailed legal brief detailing how Justice Roberts was wrong.

    I don’t understand this “conservatives don’t have a coherent legal argument against it” point of yours, Doug. Can’t they simply point to the joint opinion of Justices Kennedy, Alito, Scalia, and Thomas? Isn’t it incredibly easy to say, “I find that opinion more persuasive?”

    Sure, it’s unlikely that the vast majority would have been able to write that opinion themselves, or even articulate it, but the same is true of liberals who would foremost endorse Justice Ginsburg’s opinion.

    The “where’s your argument” point would have a lot more power in a per curiam or unanimous decision.

    I don’t think that liberals would be reacting any better had the case come out differently. I heard enough conspiracy theories and pre-allegations that the decision would be reached politically instead of on the merits by liberals before the decision, expecting to lose. That’s inevitable, simply because people are always convinced of the rightness of their own arguments.

    Indeed, I see arguments in the comments here that make it clear that liberals think that an opinion against the mandate could only be justified by being evil, no better a conclusion than the angry ones on the right now.

  24. John Thacker says:

    @Doug Mataconis:

    it’s still highly unusual for disputes that occurred in chambers to become this public.

    It is. However, commenting on the unusual nature of it will not change any minds. Conservatives will simply be convinced that the unusual event occurred because Chief Justice Roberts was so unusual in switching his vote for nakedly political reasons, not judicial ones (invoking the memory of another Justice Roberts, he of the “switch in time that saved nine,”) whereas liberals will simply be convinced on the other hand that this unusual event merely demonstrates the extreme partisanship of the conservative Justices and clerks, that they would do such a thing.

  25. @michael reynolds:

    Do you seriously believe that come 2014 people will no longer be financially ruined by illness or have to forgoe treatment due to an inability to pay?

  26. Lomax says:

    It is obvious something went wrong. Here are two scenarios. 1 – Someone got to Judge Roberts before he had finished writing the judgment. 2 – Someone changed the opinion right before it was released; in which case Roberts could not very well say that it had been changed: he would look totally ridiculous. We may never know.

  27. @Stormy Dragon:

    Seriously? A zero tolerance rule? Any health care plan must fully protect every citizen?

    … maybe you are in the single payer camp and I just don’t remember.

  28. al-Ameda says:

    I happen to think that Roberts ft that unless ACA was obviously unconstitutional – that is , something that more than 5 justices would see – then he wasn’t going to further diminish the Court’ standing by throwing out major legislation. A long winded way of saying let Congress and the voters deal with this.

    Roberts is very intelligent.

  29. jan says:

    Interesting reading about Roberts possible mid-air flip. There are many more articles and pundits legitimately discussing this today, their conclusions being there are definitely indications (fodder for doubt) in how the argument begin in negating the mandate, and then suddenly reversed it’s course and upheld it. That kind of twisting rhetoric caught the reporters, and even Obama off guard, too, because at first everyone thought the majority opinion was throwing the mandate out. Was it just clunky writing? Was it a brilliant back hand of Roberts? Or, was there an intervention? Who knows.

    I haven’t read it, though, and have no interest to do so. Also, while I disagree with Robert’s finessing the mandate into a ‘tax,’ so it could pass certain constitutional hurdles, I will accept his decision, without demeaning his character in the process. If this decision was honestly arrived at, changing the course of health care in this country, then Roberts will have little to worry about. After all, the person we sit with the most is ourselves. If our conscience is clear, so will our thoughts be that we carry with us to bed every night.

  30. anjin-san says:

    Do you seriously believe that come 2014 people will no longer be financially ruined by illness or have to forgoe treatment due to an inability to pay?

    The people I know in Canada and France do not worry about being financially ruined by illness or have to forgoe treatment due to an inability to pay. Certainly their are problems with their systems, but these do not appear to be among them.

    Unless you are in the “America can’t get it done” camp, I think these are achievable goals. Certainly we just made a significant step towards them.

  31. @john personna:

    No, I just don’t like the “anyone who doesn’t agree with us obviously just wants poor people to die” narrative.

  32. mattb says:

    Nicely put Jan, especially the conclusion.

  33. mattb says:

    @Lomax:

    Here are two scenarios. 1 – Someone got to Judge Roberts before he had finished writing the judgment. 2 – Someone changed the opinion right before it was released; in which case Roberts could not very well say that it had been changed: he would look totally ridiculous.

    Far more likely Scenario 3: That there was no chicanery and Roberts wrote the decision he planned to write.

    Though I love the Abbot and Costello style mentality that led you to scenario 2.

    I weep for the future of the conservative party.

  34. mattb says:

    @John Thacker:

    I don’t think that liberals would be reacting any better had the case come out differently. I heard enough conspiracy theories and pre-allegations that the decision would be reached politically instead of on the merits by liberals before the decision, expecting to lose. That’s inevitable, simply because people are always convinced of the rightness of their own arguments.

    To that point, a lot of Liberal Commentators/talkers seemed to concentrate on the fact that Roberts was only concerned with maintaining the legitmacy of the court. The subtext of this is that Roberts didn’t actually believe what he wrote and that in the end it was still politics up front.

    As I stated in another thread, it should be no surprise that people who parse everything politically tend to project that practice onto everyone else.

    I’m sure that Roberts had considered the political ramifications. I have a hard time seeing how anyone with at least half a brain could avoid doing that. But I still have yet to see any compelling argument for how this decision was based in politics as opposed to a reflection of his actual beliefs and reasoning.

  35. mattb says:

    @Stormy Dragon:

    No, I just don’t like the “anyone who doesn’t agree with us obviously just wants poor people to die” narrative.

    Seconded.

    Nicely put Stormy.

  36. Jay says:

    Forget about Roberts. What’s really scary is that it seems the four liberal justices on the court don’t see a situation (except maybe for abortion) where there are limits on federal power.

  37. Dazedandconfused says:

    @Jay:

    Kagan concurred with Roberts on a pretty significant limit.

  38. michael reynolds says:

    @Stormy Dragon:

    Do you seriously believe that come 2014 people will no longer be financially ruined by illness or have to forgoe treatment due to an inability to pay?

    In 2014? No. But we are on the path toward having what every single other wealthy country on earth has: a humane system. If we can just keep the Republicans out of the WH for another four years we’ll get there.

  39. The people I know in Canada and France do not worry about being financially ruined by illness or have to forgoe treatment due to an inability to pay.

    I can say about that because I´m a foreigner. I have several acquaintances and close friends that have conditions or chronic diseases, and they have a incredibly normal life. My best friend has her medical conditions, she has a low income background, but we *never* have to talk about paying for medical bills or things like that.

    But Brazilian doctors aren´t millionaires, and doctors don´t get a hundred thousand bucks for a cancer surgery. The problem in the US is the price of medical care, and the ACA does not fix that.

  40. Kylopod says:

    @michael reynolds:

    I think maybe, just maybe, Roberts thought for a moment about people forced by the costs of illness into homeless shelters, and people who suffer for years and watch their health worsen because they can’t afford an operation.

    My brother believes Roberts was influenced by the fact that he has epilepsy. No, I’m not referring the current righty theory that his meds affected his mind so that he issued this “irrational” ruling. I’m talking about the fact that epilepsy is regarded by insurance companies as a preexisting condition, a fact my brother knows all too well.

    A few years ago, at age 35, my brother suffered from a severe epileptic seizure that caused him to hit his head on the bathroom floor, left him unconscious for several days, and led to a small stroke, making him have to use a cane. If his wife hadn’t been there to call the ambulance, there’s a decent chance he would have died. It was his first seizure since he was 12, and apparently he had needed an increase in his medication, but he didn’t know that at the time, since the insurance companies had refused to cover him due to his epilepsy and he couldn’t afford to be looked over.

    He’s now on Medicare. This outcome, I feel, adds a certain irony to those claims I’ve heard from conservatives that Obamacare increases “dependency.” It’s the current system that has made my brother dependent on the government, and Obamacare would actually give him access to the private market in a way he didn’t previously have. The way some Republicans talk, you’d think Obamacare was a form of single-payer–with the addition of forced broccoli and death panels, of course.

    (As a side point, I should note that my brother opposes the individual mandate but supports single-payer.)

    While I’m sure Roberts gets excellent health care, could his medical condition have made him a little more aware of the way the health care system punishes ordinary Americans for matters not of their choosing? My brother believes that’s a distinct possibility. I personally doubt it–I don’t see Roberts’ acquiescence as a case of increased sensitivity on his part, or that of a “conservative who got mugged by reality.” I lean toward the more conventional explanation that he would have preferred to see the law disappear but he worried about public perceptions of the Court’s credibility if it struck the law down. Nevertheless, my brother’s theory is an intriguing one that deserves a little more attention.

  41. John Thacker says:

    @anjin-san:

    The people I know in Canada and France do not worry about being financially ruined by illness or have to forgoe treatment due to an inability to pay.

    OK, and that is a fairly big deal for those people, but you have to be fairly well off to be “financially ruined.” About half of households don’t even have wealth to be financially ruined. Surely the main focus of our efforts shouldn’t be to make sure that no one in the upper 30% of households is forced to become part of the bottom 50%. The main focus ought to be about helping people who are already in the bottom 50% and don’t have finances to ruin.

    In the run up to passing the bill, there was less talk about forgone treatment for the poor, and more complaining about the poor and uninsured getting treatment at emergency rooms and costing the rest of us a lot of money. The mandate portion, specifically, isn’t about causing people to not forgo treatment (except for preventative care that might save money in the future), but about keeping them from still getting emergency room treatment while not paying their fair share.

    How much of this bill is supposed to be about getting new treatment, and how much is about forcing people to pay in? The CBO estimates that 21 million people will remain uninsured by the technical definition, but most of them won’t really be uninsured, and about 3.9 million people will pay the mandate tax. (More will be supposed to pay it, but there will be avoidance.) Of that, about 400,000 people will be below the poverty line, which is $11..8k for singles and $24k for a family of four. That’s 10% of those paying the penalty, which is rather high, and in line with the 15% of people overall below the poverty line.

    Those people in poverty will unambiguously be worse off under this mandate. They still won’t have health insurance, they’re in poverty, and they will be paying this penalty. They’ll still have access to healthcare via emergency rooms, as they did before.

    (Certainly people in Canada do have to forgo treatment because of inability to pay. They forgo treatment because the country is either unwilling or unable to pay, and they would be able to get the treatment if they could get it done elsewhere, primarily in the United States, if they had the money.)

  42. John Thacker says:

    @mattb:

    But I still have yet to see any compelling argument for how this decision was based in politics as opposed to a reflection of his actual beliefs and reasoning.

    Hard to call anything “compelling,” because in this situation I don’t think that people on either side will shift off their priors. In addition, it’s nearly impossible to prove ever that someone really thinks something or not. In practice, it doesn’t really matter whether a judge or a member of Congress or a President “really” want to do something; what matters is what the person actually does.

    However, I think it’s difficult to deny that this article demonstrates that some people in the Supreme Court, perhaps even Justices, do believe that the decision was made on the basis of politics. It’s an accusation that either way diminishes respect for the Supreme Court, whether you believe it or not; it should either diminish respect for Justice Roberts or for the Justices or clerks making the accusation.

    I was not in on the deliberations, and nor was anyone else in this thread. But the people leaking to CBS were (I can’t imagine that CBS would publish this without solid sources), and it’s definitely not crazy for people to believe the leaks. It’s not crazy to distrust the leaks and blame the leakers either, though.

  43. John Thacker says:

    In any case, I stand behind my belief that it’s unfair and bizarre to reply with a “where’s your detailed legal brief” objection. It’s as silly as asking people who disagree with any other contentious 5-4 decision (or 4-1-4 in many ways, like this case) to come up with a detailed legal brief, instead of pointing to the detailed legal briefs filed by amicus curae on the case as well as the opinion(s) of the dissenters.

    I personally think that it probably is a tax, though I still don’t think it’s good policy. I waver on saying that it’s Constitutional; I think that it shouldn’t be Constitutional, but it’s definitely not worse than other social engineering that goes on with the tax code and is considered Constitutional. (You see, I think that all that other stuff, much of which is supported or introduced by conservatives, also shouldn’t be Constitutional. But that would be a pretty radical change in jurisprudence, I admit, and so I understand the current situation.)

  44. gVOR08 says:

    Congress passed a law. A law that conservatives have been pushing for decades and that the current presumptive Republican candidate for president pushed for and passed while he was a governor. A law that gives the US a pale, but best currently attainable, version of something the entire rest of the developed world does. A law that was regarded as clearly constitutional by an overwhelming concensus of constitutional scholars.

    Now John Roberts has upheld that law; and our pundit class are killing entire forests and choking the intertubes trying to find an explanation for how such a strange thing could have happened. What does this say about our current politics and the state of governance in the United States?

  45. @Stormy Dragon:

    No, I just don’t like the “anyone who doesn’t agree with us obviously just wants poor people to die” narrative.

    When you are talking to someone who (I more than suspect) does want to protect everyone, then either you can come back with a better plan to protect everyone, or you do fall to defending “protecting fewer” or “protecting less.”

  46. Moosebreath says:

    Stormy and mattb,

    “No, I just don’t like the “anyone who doesn’t agree with us obviously just wants poor people to die” narrative.”

    OK — so if you don’t want poor people to die for lack of medical care, what are you willing to sacrifice to prevent it? If the answer is nothing, then sorry for your feelings, but the narrative is accurate.

  47. @John Thacker:

    The very poor are supposed to get expanded access to Medicaid. The next level up are supposed to get subsidized private insurance.

    So I don’t think you can say this does nothing for protecting their ability to build wealth.

  48. C. Clavin says:

    @ John Personna…
    The PPACA also allows people to more easily start their own businesses…because they aren’t anchored to employer-provided insurance. A colleague of mine has a daughter with a rare form of cancer. Under the satus-quo he can never start his own office because of the cost of insuring her…if he even could insure her. The PPACA changes that.

  49. LaMont says:

    @gVOR08:

    That Republicans have gone ape $h1t crazy!!!

  50. sam says:

    @jan:

    There are many more articles and pundits legitimately discussing this today, their conclusions being there are definitely indications (fodder for doubt) in how the argument begin in negating the mandate, and then suddenly reversed it’s course and upheld it. That kind of twisting rhetoric caught the reporters, and even Obama off guard, too, because at first everyone thought the majority opinion was throwing the mandate out. Was it just clunky writing? Was it a brilliant back hand of Roberts? Or, was there an intervention? Who knows.

    Well, if anyone knows, it’s you.

  51. @sam:

    That’s why I say she doesn’t want to think about health care. Clunky writing? Seriously?

    That’s just part of the filler. Anything to change the subject from the basic questions:

    – does Jan have health insurance?
    – does she think other people should have health insurance?
    – if there was anyone she’d really advise to go uninsured, who would that be?

  52. anjin-san says:

    but you have to be fairly well off to be “financially ruined.

    Really? A working class/middle class family can’t lose their home? Go bankrupt? Not be able to keep the utilities on? Not be able to send their kids to college? Keep the car on the road? Have access to credit? What do you call it when these things happen?

  53. anjin-san says:

    A few years ago, at age 35, my brother suffered from a severe epileptic seizure that caused him to hit his head on the bathroom floor, left him unconscious for several days, and led to a small stroke, making him have to use a cane.

    I have a relative who suffered a major stroke at 24 as the result of a rare blood disorder. Now in her 50s, he has been disabled her entire adult life. A lot of people in this country seem to lack the imagination to see that anyone can lose their health on any day of their lives. Yes Republican freeholders, it can happen to you to. And if it does, unless you have a million or two stashed away, you will need help from the government.

    Thanks for sharing your brother’s story.

  54. Rick DeMent says:

    Look I’m pretty liberal and I think the decision was horrible. I mean first Robert’s decides the individual mandate was a tax. OK I get that I mean whether or not you call money paid to the government a fee or a penalty it’s all mathematically identical to a tax. The problem is what kind of tax is it? It’s not an income tax, and since it’s not collected from everyone equally it can only be called a direct tax, which is prohibited under the constitution. So Robert’s calls it a tax and then simply ignores the fact that it’s an unconstitutional tax.

    What is more troubling to me is that fact that all of this legal jujitsu comes about because someone, somewhere decided that the commerce clause requires some sort of “limiting principal” least the federal government would have the power to regulate everything. The problem I have is that there is no such limiting principal listed in the constitution. Is it interstate commerce? If yes it’s included in the powers granted the federal government; period, end of story. There is no penumbra, hint, or anything in the constitution (unlike other principals like privacy or freedom of association) You want a limit to the commerce clause? Fine amend the constitution, but any limiting principal would be, by definition, extra constitutional and there for activist.

    The nonsense about broccoli was absurd. You can go through your whole life never consuming broccoli, you don’t need broccoli to live, and one need never produce broccoli, so there for broccoli simply doesn’t figure in the interstate commerce the why heath care and health insurance does. Broccoli doesn’t even affect interstate commerce the way medical marijuana does so Scalia is completely full of horse s__t. My god, the intellectual inanity of that argument is breathtaking from anyone with room temperature IQ let alone people who graduated 4th grade.

    I understand that at the time the constitution was written interstate commerce was pretty novel. I am also sympathetic to the idea that the founders probably never envisioned that interstate commerce would grow to the point were the commerce clause would extend the power of the federal government to include all kinds of things they never thought about. I’m sure they never envisioned fully automatic rifles with armor piercing bullets, RPGs and high powered hand guns either but Ask the NRA if the 2nd amendment should extend to cover those new advancements and see what kind of answer you get (and yes, short of an amendment to the constitution I support the reading of the 2nd amendment as written).
    Anyway there you have it … buy it … don’t buy it.

  55. @Rick DeMent:

    Here’s the thing about that argument – if tax cannot shape behavior then we have to start cleaning up the whole tax code. There would be no tax deductions or credits for homes or hybrids.

    That’s the thing that would have really bugged me, as an autistic-ish engineer. The hybrid tax credit is mathematically equivalent to the insurance tax. It’s just smaller, and more hidden from non-hybrid buyers. Your tax software asks you “did you buy a hybrid?” You answer no, and move on without thinking that your tax burden might now be higher than Joe next door, for something you did not do.

    And while we’re on the subject of not doing things … how about not planting rice on your horse farm?

    There are a LOT of things that would have to be cleaned up if you wanted this “inactivity” thing to be consistently applied. And if it wasn’t consistent, if health care was singled out, then that would be pretty arbitrary and political.

  56. (So I’m saying yes, if you want to strike down every “unevenness” in the tax code, I’m with you – as an all-at-once thing. That would mean Walmart doesn’t get a special benefit or penalty over Sears, and it means movie-shoots don’t get special tax rates versus auto parts. That would be great.)

  57. @this:

    Hmm. Does that mean cigarettes would have to be taxed the same as vitamins?

  58. Moosebreath says:

    And if the responses above to Stormy weren’t clear enough, even Chris Wallace, performing something as close to journalism as Fox News would permit, shows the hole in repeal and replace with Republican wish-list.

  59. Rick DeMent says:

    @john personna:

    John I was only pointing out that the constitution does prohibit what it calls a direct tax by the federal government. I realize that if you include every fee and every penalty collected by the Federal government, which are all mathematically identical to a tax yes you would find inconsistency with the argument I submitted; but at least it would be an argument you could actually find in the constitution. I agree with what you said though. I just find all this hand wringing over a “limiting principal” pretty stupid. The constitution means what it says and the Commerce Clause is one of the most straight forward things in the document. People and thing it suckes, just like some people think the 2nd amendment sucks but there you go.

  60. @Rick DeMent:

    OK, sorry for the confusion.

  61. Tsar Nicholas says:

    Given that this is a CBS story you’d have to be comatose not to be skeptical about it. Could very well be the “source” for this account is the reporter’s own arse. Or that it’s a “fake but accurate” account.

    In any case, this is the epitome of a moot point. It’s like arguing about whether Captain Smith initially reversed the engines before gunning them.

    Going forward, the way for Republicans to deal with the SCOTUS is pretty simple. Win at least the next three presidential elections. Win and then maintain a Senate majority. Fill the next 4-6 SCOTUS vacancies with people who have Alito or Scalia-style track records and who are young enough effectively to serve for a couple of decades or more.

  62. Lomax says:

    Here is one more possibility: the opinion was given to a law clerk to proofread and somehow a mistake was made on the final – word added or left out. Judge Roberts either didn’t check back over it or missed the error. This is completely conceivable.

  63. Marvin says:

    @Doug Mataconis:

    Well, Obamacare was written (before Obama was even elected) with the Commerce Clause being the basis of it supposedly being legal. But Justice Roberts admitted the Commerce Clause stipulation made Obamacare Unconstitutional.

    But rather than rule it unconstitutional based on the way it was written, Roberts himself made it “Constitional” by saying it was Constitutional based on Congress’s right to TAX. Which WAS NOT the bases onwhich is was debated in Congress or sold to the American People. Otherwise, it would never have seen the light of day.

  64. john personna says:

    @Marvin:

    That’s false. The penalty has been set to be paid on the tax form from day one.

    Roberts did not move it to the tax form.

  65. john personna says:

    @Tsar Nicholas:

    Going forward, the way for Republicans to deal with the SCOTUS is pretty simple. Win at least the next three presidential elections. Win and then maintain a Senate majority. Fill the next 4-6 SCOTUS vacancies with people who have Alito or Scalia-style track records and who are young enough effectively to serve for a couple of decades or more.

    Wait, you want to pack the independent courts in a political manner? I am shocked, shocked.

  66. smartalek says:

    @Kylopod:
    We all know that the plural of “anecdote” is not “data,” and we all know how easy it is to find some number of instances that can be exploited in the service of any given argument.
    But leaving aside whether this is or isn’t a good theory on the Chief Justice’s motives (on which we’ll probably never know for sure), it is an excellent, and absolutely germane, data point supporting the desperate need our country has for real health-care-financing reform.
    I’m with your brother on distaste for this particular legislation, and the near-infinite preferability of single-payer.
    But politics is, I believe they say, “the art of the possible,” so I’ll take what we can get, as, where, and how we can get it… and keep working for further improvements.
    Thank you so much for your willingness to share your brother’s story, and the time/effort of posting it.
    I wish him, you, and all Americans the very best of health, today, on our upcoming national birthday, and always.

  67. Marvin says:

    @john personna:

    The point is Roberts could not justify a reason to rule Obamacare as Constitutional based on the way it was written and presented. So, he manufactured and pulled a reason out of his butt.

  68. Marvin says:

    @smartalek:

    And some people ACTUALLY think Obamacare is going to be FREE! But in the long run, it will be neither CHEAPER or FREE. There will be 32 Million more people in the healthcare systems, we will not be getting anymore Doctors to offset the influx, and the Doctors in the system will reportedly be paid less. That doesn’t add up to less healthcare costs, no matter who is doing the math.

    The people who think Obamacare means CHEAPER or FREE healthcare probably believe in Santa Claus.

  69. Racehorse says:

    @john personna: There are many people who do not file an income tax return. How will they be dealt with if they do not have health insurance? Some of them do have an income, but choose not to report it. Others, for various reasons, are exempt from filing a tax return. There are still others who file a return, but put off paying indefinitely. Seems like a lot of loopholes and questions.

  70. john personna says:

    @Marvin:

    LOL, that’s not how courts work.

    If courts could make laws into something else, our system of constitutional government would crash down.

  71. john personna says:

    @Racehorse:

    You haven’t read how it works, have you?

    Low earners, who do not file, are exempt from penalty.

  72. Marvin says:

    @john personna:

    Your reply perfectly explains why the conservatives are so upset. Obamacare, the way it was written, could not stand as Constitutional – so Roberts tossed Obama a bone by putting the law under Congressional Taxing authority. And remove it from the Commerce Clause that the Obama Administration actually wrote the law under. Anyone trying to debate the issues should already know that much.

    You have one thing right though, when Justices start writing legislation from the bench, our Constitutional Government is in deep doo doo. That is another reason Conservatives are hell bent on repealing Obamacare.

    Furthermore, it leaked out today that Roberts was going to strike down Obamacare as unconstitutional but changed his mind at the last minute. One of the other Justices asked him on what basis was he ruling Obamacare Constitutional, and Roberts had no answer.

    If you do not even know the latest news on the issue, how can you intelligently debate your points?

  73. Gromitt Gunn says:

    @Racehorse: If only there was a state that has had Romneycare in the books for years that we could look to as a model for these questions…

  74. Marvin says:

    @Gromitt Gunn:

    What is good for one State is not necessarily good for the entire nation, because if a person doesn’t like a particular State law, he can simply move to another State. Furthermore, Romney care doesn’t have 16,000 new IRS agents who are going to be going around harrassing small business owners for Romney’s State Healthcare Law. But Obamacare did create such an Army.

    SEE THE DIFFERENCE?

  75. Marvin says:

    @Racehorse:

    People without trackable income will have their Obamacare paid for by the rest of us. Just like everything else Liberals like to exchange for votes – food stamps and Section 8 housing e.g.

  76. john personna says:

    @Marvin:

    You keep saying things that Roberts didn’t do.

    That’s OK. It sounds crazy and moves the ball down to la la land.

    Your arguments become self-refuting.

  77. Marvin says:

    @john personna:

    Then in that case I guess the entire mainstream media is in “la la land” too. Because the weak basis of Roberts decision is what the talking heads have been discussing all day.

  78. anjin-san says:

    what the talking heads have been discussing all day.

    Pssssst… Marvin

    The news networks are junkies desperate for content… they have to feed the machine 24/7/365. They will talk about anything all day, just to have something to talk about. Do you really lend these people any credence? Try thinking for yourself.

  79. Marvin says:

    @anjin-san:

    Psssssst… anjin-san

    If it was not for the news networks, you would not even know that SCOTUS voted on Obamacare. Then the only things you would have to talk about is trivia that means nothing to anybody but yourself.

    Try thinking about that!

    🙂

  80. @Marvin:

    Enjoy today’s news.