Photo: The White House/Getty Images
On Thursday, some professors and Supreme Court watchers began to speculate that the Supreme Court was on the verge of killing the Affordable Care Act, and that Chief Justice John Roberts switched his vote in the latter stages of deliberations. Adding more fuel to that fire, two Supreme Court sources told CBS’ Jan Crawford on Sunday that Roberts had indeed flipped at the last minute. And he tried to get Justice Anthony Kennedy, the typical “swing” vote, to come with him.
Crawford’s sources portray Roberts as a Chief Justice that was worried about the court’s perception and his own legacy. He originally sided with the four other judges who decided to strike down the mandate — conservatives Clarence Thomas, Antonin Scalia, Samuel Alito and Kennedy, but he began to feel “the external pressure” when writing the decision.
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.
Speculation began to grow about Roberts’ switch over some of the language in the dissent. Brad DeLong, an economics professor at UC Berkeley, first noticed the unusual language in Scalia’s dissent that made it seem as if Scalia was originally writing the majority opinion of the court.
Once Roberts joined the opinion that the law would be upheld as a tax, he attempted to convince at least Kennedy to join the majority. Some of the similarities between what Roberts writes in his opinion and what Kennedy said during the oral arguments are evident.
Kennedy was extremely critical of the government’s argument that Obamacare was constitutional under the Commerce Clause. Here’s some of what Kennedy said in the arguments:
“…the reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. …
“Here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases – and that changes the relationship of the federal government to the individual in a very fundamental way.”
Kennedy also dismissed the government’s argument that the insurance market was “unique.”
“And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique,” he said.
At one point, Kennedy bluntly asked U.S. Solicitor General Donald Verrilli, “Can you create commerce in order to regulate it?”
Now, here’s what Roberts wrote in his opinion, when rejecting the government’s argument that the law was constitutional under the Commerce Clause. He even uses some of the same language:
“Congress already enjoys vast power to regulate much of what we do. Accepting the government’s theory would give Congress the same licence to regulate what we do not do, fundamentally changing the relation between the citizen and the federal government. …
“The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to ‘regulate Commerce.'”
In the end, though, Roberts was unable to convince Kennedy and was the lone conservative to swing. And Kennedy lashed out at Roberts’ opinion in a statement from the bench.
“The fundamental problem with the court’s approach to this case is this: It saves a statute Congress did not write,” Kennedy said. “The court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. The court imposes a tax when Congress deliberately rejected a tax.”
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