Monday, July 02, 2012

Roberts reversal?

Within hours of the Supreme Court's 5-4 ruling Thursday that the individual mandate in Obamacare be allowed to stand, there were rumblings that Chief Justice John Roberts, who cast the deciding vote, had initially sided with his fellow conservative justices who voted to strike down the law. I viewed that mindset as little more than an unsubstantiated theory amongst Obamacare opponents. It's amazing how conspiratorial people become when they're unable to convey a rational explanation for what they felt was a sure thing (in this case, it seemed a forgone conclusion Roberts would vote to strike down the law).

But according to CBS News, within the last month, Roberts did indeed change his vote, thus siding with the liberal bloc of the court in upholding the Affordable Care Act.

If indeed the sources for this story are correct, the natural question is what caused him to flip? There has been one popular meme being bandied about, one which I desperately hope is not true.

....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.

Syndicated columnist Charles Krauthammer said essentially the same thing within hours of the decision being announced.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5 to 4 decision split along ideological lines that might be perceived as partisan and political.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

I have a theory as to why Roberts may have changed his vote. I don't doubt that he had concerns about the court's legacy under his tenure as Chief Justice. But he needed an "out" in order to uphold ACA's core, which is the individual mandate. I wouldn't be at all shocked if Roberts conveyed he would vote to uphold the I.M. only if the liberal justices would acquiesce to a restriction of the commerce clause as it pertained to the individual mandate. Hence it was ruled the I.M. would be a "tax." It wouldn't be a stretch to say that the left wing of the court only reluctantly agreed to this, evidenced by Justice Ruth Bader Ginsburg giving a dissenting opinion on the ruling from the majority side.

Again, this is a theory I cooked up on my own. If you want to say that this is merely a rationalization in light of the possibility Roberts caved to outside pressures, I would be hard pressed to give a coherent retort.


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