Did Roberts Pull a 'Switcheroo'?

One of the most intriguing-although admittedly speculative-topics to emerge from last week’s health care ruling is whether Chief Justice John Roberts changed his vote during the court’s deliberations, and, if he did, what might have motivated him to change his vote.

Articles in The Washington Post, the Wall Street Journal and the Volokh Conspiracy blog all sifted for hints as to whether Roberts abandoned an initial decision to overturn the health care law in its entirety (the Journal’s headline spoke of a “switcheroo”). But the most strongly worded report came in a highly unusual insiders’ account from CBS News reporter Jan Crawford, who cited  unnamed sources as saying that Roberts had reversed his original vote on the case.

According to Crawford’s report, Chief Justice Roberts voted in conference to strike down the health care law, saying that a mandatory insurance requirement exceeded Congress’s authority to regulate interstate commerce. In a surprise to many, Roberts nonetheless found that Congress could use its taxing authority to encourage the purchase of health insurance, and thus upheld the law.

Crawford wrote:

In this closely-watched case, word of Roberts’ unusual shift has spread widely within the Court, and is known among law clerks, chambers’ aides and secretaries. It also has stirred the ire of the conservative justices, who believed Roberts was standing with them.

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.

Whether Crawford’s account is accurate, several points are worth noting. Although changes of position after the initial vote are rare, justices are allowed to alter their votes during the back and forth of exchanging draft opinions. Indeed, according to numerous accounts, Anthony Kennedy did just that at another critical moment in Supreme Court history. In 1992, Kennedy first voted to strike down Roe v. Wade, but changed his mind before a final decision upheld abortion rights in Planned Parenthood v. Casey.

Other cases of intra-court vacillation are noted in insider accounts of the court, including Crawford’s own “Supreme Confict.”

Moreover, in Saturday’s Washington Post, Supreme Court reporter Robert Barnes noted that Roberts had raised the issue upon which he based his final opinion in March, during oral arguments over the health care law.


Roberts in Spotlight; His Health Care Act Role Examined

Some analysts have rushed to commend Chief Justice John Roberts Jr., who stunned most observers by casting the deciding vote to uphold the core provision of the Affordable Care Act. Other analysts cautioned against premature adulation.

“Roberts Shows Deft Hand as Swing Vote on Health Care,” declared the headline for a New York Times analysis by Adam Liptak, who said the chief justice’s “defining and delicate role in upholding the health care law will always be associated with his tenure.”

Jeffrey Rosen, a George Washington University law professor, described “a dramatic vindication of the vision of bipartisanship that Chief Justice Roberts articulated at the start of his term,” according to a McClatchy newspapers article.

“With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court,” UCLA Law Professor Adam Winkler wrote in Huffington Post. “Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn’t want to go there.”

But historian Jeff Shesol, author of a book about the Supreme Court and President Franklin Delano Roosevelt, suggested putting the brakes on crediting Chief Justice Roberts for statesmanship and judicial modesty. His essay in Slate was entitled, “Why our crush on the chief justice is silly—and undeserved.”

“[Thursday’s] outcome, to be sure, is worth celebrating. But the lionization of John Roberts does not withstand a reading of his opinion,” Shesol wrote. He took strong issue with the (more…)

Limited Anti-Court Blowback on Health Care Ruling

Dissenters sounded off with displeasure and anger over the Supreme Court’s  ruling that upheld the provision at the heart of the controversial Affordable Care Act. At least in the initial rounds, however, any anti-court backlash was  limited.

“While I’m disappointed in their decision, they came to a decision. I respect it,” said House Speaker John Boehner (photo), a Republican, according to a report in The Hill.

Republican Senate Leader Mitch McConnell focused on what comes next. “The court’s ruling doesn’t mark the end of the debate. It marks a fresh start on the road to repeal,” he vowed, according to an Associated Press article.

Ben Shapiro, a brietbart.com columnist, likened the ruling to the Dred Scott decision.”This is the greatest destruction of individual liberty since Dred Scott. This is the end of America as we know it. No exaggeration,” he tweeted, the International Business Times said.

There were only limited calls for action directed at the court.

“I think it’s important to look at Justice [Elena] Kagan for potential impeachment,” said Rep. Louie Gohmert, R-Texas, a Slate article reported.  He questioned whether President Obama’s former Solicitor General had  “lied in order to get on the court,” the Fort Worth Star-Telegram said.

In Michigan, the Toronto Star reported, former Republican Party spokesman Matthew Davis sent out a news release with the headline, “Is Armed Rebellion Now Justified?” Davis said he wasn’t actually calling for violence, according to MichiganCapitolConfidential.com.


Editorial: On Health Care Act, Court Legitimacy Preserved

A deluge of diverse editorials and punditry followed the Supreme Court’s ruling on the Affordable Care Act. One theme focused on the court’s avoidance of a ruling split totally along partisan lines, which could have undermined the court’s legitimacy.

When the court divided 5-4 in upholding the central provision of the Affordable Care Act, conservative Chief Justice John Roberts Jr., an appointee of a Republican president, and four liberals who were appointed by Democrats joined sides on Thursday to determine the outcome.

A Washington Post editorial said, “In an editorial Thursday, we said that many Americans would be watching the court to see whether, at a time of extreme partisanship, it could craft a decision that impressed as an act of law, not politics. In our view, the court passed that test of legitimacy.”

At the New York Times Opinionator blog, Linda Greenhouse discussed Chief Justice Roberts’s decision upholding the so-called individual mandate as a permissible tax, after he found it impermissible under the Constitution’s Commerce Clause:

“His decision to call the mandate a tax and to provide a clearly reluctant fifth vote for upholding it as within the Congressional taxing power was a deeply pragmatic call that saved the Affordable Care Act. Certainly by no coincidence, it also saved the Supreme Court from the stench of extreme partisanship that has hung over the health care litigation from the moment more than two years ago that Republican state officials raced one another to the federal courts to try to erase what they had been unable to block.”


Roberts Casts Deciding Vote; 'Activist' or 'Referee'?

By casting the deciding vote to uphold the central provision of the hugely controversial Affordable Care Act, Chief Justice John Roberts Jr. surprised many observers. He was praised by some liberal pundits and criticized by some conservatives following the 5-4 ruling (see Gavel Grab).

“It’s a terrible day for the American people,” said Rep. Michele Bachmann, a Minnesota Republican who ran for president, according to Salon. “This was an activist court that rewrote the law to make it even more ineffectual, and even more expensive.

A National Review Online headline trumpeted “Chief Justice Roberts’s Folly.” The editorial protested:

“The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.”

Wrote Ross Douthat in a New York Times essay, “Obamacare seems to have been saved by Chief Justice Roberts’s decision to put political considerations ahead of a straightforward reading of the health care bill.”

From an opposite vantage point, Andrew Rosenthal wrote in a New York Times blog, “This is going to be hard for right-wingers to swallow, since Chief Justice Roberts was their great standard bearer for conservative judicial and political thought and against ‘judicial activism.’ But he has enhanced, in no small way, the reputation of a court whose standing has suffered greatly since Bush v Gore.”


Supreme Court Upholds Core Provision of Health Care Law

A divided Supreme Court has upheld the central provision of the federal health care overhaul, which requires almost all Americans to obtain health insurance or face a penalty.

Chief Justice John Roberts Jr., a conservative, joined the court’s liberal wing in the historic ruling, one that affects millions of people and was the most closely watched case in recent memory. The 5-4 ruling delivered a legal victory for President Obama in a presidential election year.

“The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” Chief Justice Roberts wrote for the court’s majority, according to a Reuters article.

“Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” he wrote.

In another part of its decision, the court narrowed the Affordable Care Act’s extension of Medicaid for low-income people. It said the federal government may not threaten to withhold existing funding from states that choose not to comply, Bloomberg reported.

The case has thrust the high court into an unusual spotlight and prompted extensive debate over its role and even its structure. It came on the final day of the court’s term.

Initial reports about the ruling included articles in The New York Times, Washington Post, Los Angeles Times, Fox News, Wall Street Journal and USA Today.


Intense Interest Ahead of Decision Day at Supreme Court

On the eve of presumed Decision Day, pundits asked whether partisanship or the rule of law would prevail in a Supreme Court decision on the Affordable Care Act. The discussion grew feverish at times, with one analyst suggesting the court’s legitimacy is at stake.

The Supreme Court is expected to announce its blockbuster decision on the federal health care reform on Thursday. The case is squarely in the public eye.

“More people have paid attention to this case than any other case in recent memory, probably with the exception of Bush v. Gore,” said Paul D. Clement, who represented the law’s challengers in court, according to a Washington Post article.

How will the outcome be perceived? Harold Meyerson was skeptical in a Washington Post op-ed. He said that by his own measure, “the Supreme Court’s record in the past week fairly reeks of the justices’ politics.”

Jeffrey Rosen, a law professor at George Washington University, took a more open-minded approach in the online New Republic. The court’s decision on Monday regarding Arizona’s immigration law was “a model,” he wrote, “of how the Court can make decisions based on judicial philosophy rather than partisanship.”


Supreme Court in Media Eye Over Health Care Ruling

The Supreme Court hasn’t ruled yet on the Affordable Care Act. Nonetheless, pundits already are floating ideas about restructuring the court and challenges to the legitimacy of the court’s upcoming decision.

Even in the run-up to a decision — expected on Thursday — the crescendo of analysis and speculation indicates a heightened level of media attention the court is getting over a blockbuster decision.

In Forbes, Doug Bandow of the Cato Institute wrote “How to Fix the Supreme Court After the ObamaCare Judgment.” His numerous proposals included fixed terms and a much larger court than the current nine-member bench.  Jonathan Bernstein asked in a Washington Post blog, “Would a SCOTUS decision against Obamacare be legitimate?”

Meanwhile there was feverish speculation about what the court will do, and why. “Speculation grows that [Chief Justice John] Roberts will write majority opinion in health-care case,” declared a Washington Post headline. Also in The Post, Ezra Klein wrote, “How Republicans made it possible for the Supreme Court to rule against the mandate.”

Waiting for Health Care Ruling: Drama and Critiques

In the final days of the Supreme Court’s term, a wave of commentaries and analysis has focused on the nine justices. The high level of attention came amid what a New York Times article described as high drama surrounding a ruling on the new federal health care law:

“The impending health care ruling by the Supreme Court has become this city’s O. J. Simpson verdict crossed with a papal conclave — polarizing, maddeningly unpredictable and shrouded in mysterious signaling.”

Jonathan Turley, a law professor at George Washington University, had a provocative opinion piece in the Washington Post. It was entitled, “The fate of health care shouldn’t come down to 9 justices. Try 19.”

In The Atlantic, James Fallows wrote about the Roberts court, “La Loi, C’est Moi.” Striking an easier tone was Stephen L. Carter, a law professor at Yale, in a Bloomberg News commentary, “Can Everyone Please Lighten Up About the Supreme Court?”

Recapping the court’s record up until Monday, a Washington Post article was headlined, “For Obama, Supreme Court health-care, immigration rulings to close a tough term.” A Wall Street Journal report declared, “Supreme Court Saves Best for Last.

Supreme Court Heading Into June Overtime Period?

The Supreme Court could go later next week — beyond a previously announced Monday session — to finish its work for the term and deliver a blockbuster decision on the Affordable Care Act.

Adam Liptak offered that forecast in a New York Times article based both on traditions of the court and the fact that Chief Justice John G. Roberts Jr. did not announce on Thursday that Monday would be the court’s last day.

The court also may act on high-profile cases involving Arizona’s restrictive law against illegal immigrant’s and a Montana statute seen by some as defying the high court’s Citizens United ruling.