Commentary: Roberts Would 'Alter the Legal Firmament'

Since Chief Justice John Roberts Jr. cast the deciding vote to uphold most of the Affordable Care Act in June, pundits have typed thousands of words in efforts to analyze the surprising outcome. One of the latest analyses, a National Journal cover story, offers thousands more words that are best summed up in its pithy headline:

“Tipping the Scales: He doesn’t look the part of a revolutionary, and he may be anathema to conservatives at the moment, but Chief Justice John Roberts is on course to fundamentally alter the legal firmament.”

And he is not charting a course in the direction of the more liberal justices with whom he sided on the health care reform decision, James Oliphant writes. Rather, the author suggests, it would be in the direction of the conservative justices whom he joined in finding that the health care law did not withstand constitutional muster under the commerce clause, and potentially reaching “to attacks on all sorts of expressions of congressional power.”


Scalia on Individual Mandate: A Penalty 'Can't be a Pig'

Supreme Court Justice Antonin Scalia criticized the court majority’s reasoning that narrowly upheld most of the Affordable Care Act. He voted in the 5-4 minority.

In a Fox News interview broadcast on Sunday, Justice Scalia discussed the reasoning used by Chief Justice John Roberts Jr. and four liberal colleagues to find that the individual mandate, a central portion of the overhaul law, “may reasonably be characterized as a tax.”

“There is no way to regard this penalty as a tax. … In order to save the constitutionality, you cannot give the text a meaning it will not bear,” Justice Scalia said, according to a Reuters article. He added, “You don’t interpret a penalty to be a pig. It can’t be a pig.”

Justice Scalia also said that he expected to choose the timing of his retirement so that a like-minded president could name his successor.


Scalia: No 'Falling Out' With Chief Justice

“No, I haven’t had a falling out with Justice Roberts,” Supreme Court Justice Antonin Scalia said in a TV interview, when asked about reports of a clash with the chief justice.

Justice Scalia said about the court,  according to an Associated Press article, “There are clashes on legal questions but not personally.” He added, “The press likes to paint us as nine scorpions in a bottle, and that’s just not the case at all.”

He was interviewed on CNN’s  “Piers Morgan Tonight” and was asked about unconfirmed news reports of deep “discord” on the court after Justice John Roberts, a fellow conservative, had cast the deciding vote with four liberals to uphold the Affordable Care Act. (Click here to view the CNN interview video.)

“You should not believe what you read about the court in the newspapers,” Justice Scalia said at another point, according to a New York Times report. “It’s either been made up or been given to the newspapers by somebody who’s violating a confidence, which means that person is not reliable.”

On another front, Justice Scalia said “the court is not at all a political institution,” and added, “I don’t think any of my colleagues on any cases vote the way they do for political reasons.” He went on, “They vote the way they do because they have their own judicial philosophy.”


Gallup: Republicans, Democrats Shift Views About Roberts

The Supreme Court’s 5-4 decision upholding most of the Affordable Care Act apparently caused “a major shift” in the views of both Republicans and Democrats regarding the court and Chief Justice John Roberts, who cast the deciding vote, a new Gallup poll shows.

“Whereas Republicans were initially highly favorable toward Roberts in 2005, when he was considered a conservative justice appointed by a conservative Republican president, their opinions are now more negative than positive,” according to Gallup. Republicans’ favorable rating of Justice Roberts declined 40 percentage points from 67 percent to 27 percent now, while Democrats’ favorable rating rose 19 percentage points, from 35 percent to 54 percent now.

“Opinions about the U.S. Supreme Court more broadly have shifted in similar fashion,” Gallup reported. “Republicans and Democrats had roughly similar favorable opinions of the court last September. Now, about two-thirds of Republicans have an unfavorable opinion, while about the same percentage of Democrats have a favorable opinion.”

Meanwhile, a rare commentary about the Supreme Court’s ruling from the vantage point of another top judge was penned by Wisconsin Supreme Court Chief Justice Shirley Abrahamson.

“Of the millions of words written and spoken about the Supreme Court’s decision … too many have focused on labels and politics, too few on the principles of judging. Chief Justice John Roberts’ decision, regardless of anyone’s opinion of whether he was ‘right’ or ‘wrong,’ reflected a basic approach to judicial service that many of us who wear black robes at work try to use,” she wrote in a Cap Times opinion piece.


Article: Unnamed Justices Say Any Scars Will Heal

Amid unconfirmed reports of “deep and personal discord” at the Supreme Court, unidentified justices have told National Law Journal that any scars from the Affordable Care Act decision likely will heal quickly.

“Everyone here does have the sense the institution is so much more important than the nine who are here at any point in time and we should not do anything to leave it in worse shape than it was in when we came on board,” one justice said. The recent term’s end was “certainly hard,” the justice said, but added, “My guess is we’ll come back in the fall and have the opening conference and it will be almost the same. I would be very surprised if it’s otherwise.”

Another justice told the National Law Journal,  “The term always starts friendly and relaxed, and gets tense at the end when the most difficult cases pile up. It’s still collegial, but there is an overlay of frustration.”

CBS News reported earlier that Chief Justice John Roberts Jr. had switched sides before casting his deciding vote to uphold the federal health care law’s central provision. Reporter Jan Crawford said that “[c]onservatives feel a sense of betrayal” and his switch of position “infuriated the conservatives” (see Gavel Grab). Her accounts of the vote switch have not been confirmed.

Column: Harmful Impact From 'Deep Throats' at High Court

Recent leaks about Chief Justice John Roberts switching sides, voting to uphold the central provision of the Affordable Care Act, continue to alarm some court observers.

In the (Fort Worth, Texas) Star-Telegram, Linda Campbell wrote a column entitled, “The danger of Supreme Court deep throats.” She pointed to a potentially harmful impact:

“Maybe the loose lips have belonged to clerks, not justices themselves. But I wonder if the leakers have considered this: What would be the point of lifetime appointments to insulate justices from the political winds if they’re going to act like the rest of D.C.’s deep throats?”

In the New York Times Opinionator blog, veteran Supreme Court observer Linda Greenhouse examined the evolution of Justice Roberts’s thinking.  She suggested clues may emerge from scholars’ analysis that help explain the leakers’ response, which Greenhouse sees as attempting to “burn down” the Supreme Court:

“A Harvard law student, Joel Alicea, in a smart post on the conservative Web site The Public Discourse, wrote that the health care decision revealed ‘a clash between two visions of judicial restraint and two eras of the conservative legal movement.’ If Chief Justice Roberts, nearly a generation younger than Justices [Antonin] Scalia and [Anthony] Kennedy, in fact represents the old form of legal conservatism, in which the judicial role is to salvage statutes if possible rather than eviscerate them in the service of a bigger agenda, that’s a fascinating and highly consequential development.

“And it may be just such a fear that explains the anger and angst, the willingness of the leakers — as opposed to disappointed conservatives of an earlier era — to burn the court down in order to delegitimize one whom they happily claimed as their own only weeks ago.”


Essay: A Risk to the Courts When Judges Act Like Bloggers

With sometimes caustic or seemingly partisan remarks from the bench, more judges and Supreme Court justices are behaving like bloggers instead of neutral jurists, Jeffrey Rosen warns in an intriguing Politico essay.

There is a potential cost for fair and impartial courts when Supreme Court justices, addressing the constitutionality of the health care law, begin using metaphors about broccoli that once were employed by Internet pundits, contends the law professor at George Washington University:

“[W]hen when lower court judges and justices act like partisan legal pundits, faith in the neutrality of the courts can only decline.”

“Judges who act like bloggers and pundits are putting their own ideological agendas above the long-term institutional interests of the courts on which they serve.”


CBS: 'Deep and Personal' Discord at Supreme Court

There is “deep and personal discord” at the Supreme Court after Chief Justice John Roberts broke with fellow conservatives to cast the deciding vote to uphold the central provision of the Affordable Care Act, CBS News has reported.

Jan Crawford of CBS, who on July 1 had reported that Justice Roberts switched his vote on the hugely controversial issue, provided the most recent account. Quoting unnamed sources, Crawford reported that “[c]onservatives feel a sense of betrayal” and his switch of position “infuriated the conservatives.” Her accounts of a vote switch by Justice Roberts have not been confirmed.

While reports of a vote-switch have gained widespread attention, so too has the subject of leaking on the court. Attempting to give context is an article by Jonathan Peters in Slate, stating there is a “long and colorful history of leaks” at the court, dating back to the 19th century.

Meanwhile there were more news media analyses of the court’s recent record, and proposals to change the court’s authority. David Savage wrote in the Los Angeles Times, “Supreme Court Becomes Roberts Court in Year of Surprises.” “Term Limits for Federal Judges” was the topic of a New York Times commentary by Jamal Greene, a former clerk to then-Justice John Paul Stevens and professor at Columbia Law School. Also in the New York Times, the Sunday Dialogue feature had readers debating whether to rein in the federal courts.

Analyst: Next Term May Help to Define Roberts' Approach

Chief Justice John Roberts’s surprise vote on the health care ruling still has analysts struggling to define his jurisprudence. At Reuters, veteran Supreme Court reporter Joan Biskupic suggests more answers — and surprises — may lie ahead.

In a piece entitled “Roberts redux? U.S. top judge may surprise again,” Biskupic warns, “[I]f history is any indication, the 57-year-old chief justice, appointed for life, will surprise again during the course of a legacy that could last decades.”

Looking ahead to the court’s agenda, she notes, “At the top of the heap are cases on affirmative action, voting rights and gay marriage – issues where he may stay the conservative course or further shatter the conventional wisdom.”

Historian Jeff Shesol offers an intriguing view at Slate of the sharply contrasting responses to the chief justice’s health care vote. Justice Roberts sided with the court’s liberal bloc in upholding the core provision of the Affordable Care Act:

“Whatever else he might be, John Roberts is a Rorschach test …. We squint our eyes at Roberts and see, in blurry but corporeal form, our deepest hopes or fears about his court and judges generally. That is why reactions to his decision on the Affordable Care Act have fallen into two familiar archetypes—competing caricatures of judges either as oracles of truth and wisdom, or ‘junior varsity politicians,’ as Justice Stephen Breyer has put it (in (more…)

Romney Joins in Criticism of Roberts

Conservative criticism of Chief Justice John Roberts for his deciding vote in last week’s health care ruling has reached a new level. Mitt Romney said in a TV interview he saw a “political consideration” at play in the chief justice’s vote.

Conservative anger has boiled over at Justice Roberts for his decisive role in the court’s 5-4 decision last week upholding the central provision of the Affordable Care Act, with many critics contending the justice acted in a “political” way. At the same time, the chief justice has been praised by many others for his role in a ruling that helped preserve the court’s legitimacy — since the ruling did not track the court’s partisan divisions.

A number of conservative critics have seized on an unconfirmed news report that Justice Roberts switched his vote. (For a longer post about these criticisms and about an essay by legal analysts that rejects the critics’ fireworks as “ridiculous,” see Gavel Grab).

Romney, noting the reports about vote-switching, said in a CBS interview, “It gives the impression that the decision was made not based upon constitutional foundation, but instead political consideration about the relationship between the branches of government,” according to a New York Times article.

The former Massachusetts governor also called the chief justice a “very bright person” but portrayed his decision as “not accurate.”

Meanwhile “a new wave of analysis” was focusing on who could have leaked to CBS News for its report about vote-switching, according to a Huffington Post article. The article has a round-up of blog posts and news media reports examining the topic.

Unlike the other branches of government, an article in The Hill suggested, “[T]he court has a reputation as leak-proof, which is a key part of its above-the-fray image. That image has been seriously tested over the past four days….”