Did John Roberts Switch His ObamaCare Vote? If So, Why?

If yesterday's CBS News account of Chief Justice John Roberts switching his vote and ultimately siding with the Supreme Court's liberal voting block in order to uphold the law is correct, then the next question is why, exactly, Roberts switched his vote. 

The CBS report offers some speculation that Roberts may have felt intense pressure due to media criticism warning of a crisis of legitimacy should the Supreme Court strike down all or part of the law.

So was it all political? Maybe not. Reporter Jan Crawford also cautions that no one really knows why Roberts switched. "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," the report notes. 

Jonathan Adler, a law professor at Case Western Reserve University who has been critical of the health care law, suggests that other explanations may work better. "I don't agree with what Roberts did," he says. "But I do think there are good reasons to adopt slightly more charitable accounts of his behavior."

Roberts has made the case for judicial modesty and deference to the legislature before, likening the court to an "umpire" and arguing for "humility" from the bench. The role of a Supreme Court justice, he told Congress, "is a limited role. Nobody ever went to a ball game to see the umpire."

Roberts' ruling, then, may be an attempt to restrict the court to staying within what he believes to be its limits. Crawford's "piece never directly claims political motivation, and there are other explanations," says Adler, noting that "Roberts has stretched statutes to preserve their constitutionality before. He genuinely believes that's the proper thing to do, and may feel some regret that he didn't stick with that position in [the Citizens United case]."

I find Crawford's account of Roberts' switch both plausible and likely. And, like Orin Kerr, I suspect that at least one of the two anonymous sources she cites for the report was a sitting Supreme Court justice. And I'm willing to entertain multiple possibilities as to why he switched his vote. We may never know the true reason. (For that matter, we may never get official, on the record confirmation that he actually made the switch.)

But the nature of Roberts' decision, which unexpectedly justified the mandate as a viable exercise of the taxing power but not the commerce power—a long-shot argument that even most judges who ruled in favor of ObamaCare didn't buy—suggests that the decision was designed with the Supreme Court's role in mind. It is possible, of course, that Chief Justice Roberts simply thought about it and found the tax argument compelling enough to give ObamaCare's mandate a pass. But given the report that he initially voted against the mandate and later went "wobbly," it also seems plausible that he switched his vote to uphold the mandate via the tax power not exclusively because he thought it the best and strongest legal argument, but with shaping the role and reputation of the court in mind.  

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  • John||

    Roberts is a moral and intellectual coward who doesn't have the intestinal fortitude to stand up to bullies. It is that simple. I am sure he was saddened by all the mean things liberals said about him over Citizens and just couldn't bear to have people not like him.

    And if Orin Ker is right, and sadly he often is, we are totally screwed. That means the long game Roberts is playing is to roll over and give liberals whatever they want so he feels loved and gets whatever the fuck his mommy didn't give him in childhood from liberals.

  • T o n y||

    The "long game" is that he is saving up perception capital for other controversial decisions he's likely to help make in the future, or that he has an incremental approach to advancing the conservative agenda, which means not shaking things up too much all at once and potentially undermining the cause.

    But I don't buy it. It is a very rare, if nonexistent, occurrence in Washington in which a loss is preferable to a win.

  • Night Elf Mohawk||

    He's saving up perception capital for when he has to run for Justice again?

  • T o n y||

    Again, it's not my narrative. But the story goes he pays attention to media critiques of the Court and sees it as his duty to uphold its credibility, and important for his legacy not to be seen as a partisan agent.

  • Incredulous||

    His flip-flop and failure to fulfill his basic duty of upholding the Constitution just destroyed the last bit of credibility the USSC had left.

    This may be the nail in the coffin for the American experiment in freedom.

  • Pip from the forge||

    Awesome analysis, John. Insane, but awesome.

  • Mo||

    How the fuck do you bully a guy at the pinnacle of his chosen career path with a lifetime appointment? You can't fire him, his budget is never getting cut and you can't pack the court. He has the pimp hand.

  • ||

    Because he obviously has some deep seated need to be liked. He was probably beat up in elementary school for being a nerd.

  • Mo||

    I doubt he would think this ruling would help him get liked. The responses to his ruling are very predictable and I doubt he didn't see it coming.

  • marecek||

    What complete and utter nonsense! Assuming for the sake of argument that the narrative of Roberts being bullied and needing to be liked is actually true (I know almost nobody on the Right any longer believes facts are necessary to any argument), the conclusion does not even remotely follow therefrom. Most people who are bullied (at least the balanced and intelligent ones) do not spend their lives seeking the approval of the types that bullied them. What they do is attempt to get into a situation where they are no longer bullied or have power over their previous bulliers (I'm sure everyone is familiar with the dream scenario of being the boss in a firm where the former captain of the football team who bullied you is a lowly smuck whom you can now kick around). Perhaps with the exception of the President, there is no more powerful position in the US government than Chief Justice. Roberts has achieved the situation where he no longer needs to worry about being bullied and does not have to care about what the bullies think of him. This silly explanation offered is rather a rationalization for how someone, whom you assumed was absolutely reliable to carry water for the movement conservative types, didn't carry out his assignment. In other words, you simply don't understand what really went on here, so you reach for highly implausible and ridiculous explanation that salve your hurt feelings. TOUGH! Get over it~

  • Auric Demonocles||

    Is there some place where we can send mail to SC justices? I'd like to send Roberts a rant on how big an idiot he is if this was his attempt to protect the legitimacy of the court.

  • marecek||

    Hey, John, I WISH your explanation were true because I would have a long list of Roberts' positions which I would like (as part of his rolling over and giving me whatever I want) him to revise at his earliest convenience, and Citizens' United is right at the top of the list. Do you honestly think he is going to roll over for me? Get real and stop making up nonsense.

  • ||

    "Shake your head, boy. Your eyes are stuck."

  • Serf||

    Why?

    Fuck you that's why.

  • SIV||

    The Roberts apologists all seem to agree he thought the health care law was unconstitutional. So what the fuck is his job? Upholding unconstitutional laws to earn the respect of progressive elites?

  • John||

    See he put the court above political reproach by making decisions based on politics. That is actually what they are arguing. And yeah it if epically stupid.

    I suspect Roberts, like an abused spouse, will be more easily bullied in the future and move his opinions further and further to the left as time goes on. Once you sell your self out it gets easier each successive time you do it.

  • kinnath||

    The implication is that Roberts is a politician applying game-theory to judging the law and not a justice applying legal theory to judging the law.

    I was mentally prepared for Kennedy to go to the other side and accept the Commerce Clause theory. But this decision by Roberts still makes me ill. It really doesn't get any worse than this.

  • Broseph of Invention||

    Roberts trusts the political process too much, nevermind that it shouldn't even be a consideration in the first place. I'm guessing he thinks that by couching policy in terms of tax, Congress will somehow be more accountable to the electorate because of The Dirty Word. He thinks the electorate is both too dumb to realize the difference between a tax and penalty, and too smart to have the words spun another way.

    Roberts spoke at my law school a couple years ago. Already the liberals were talking about him as their favorite (read "least bad") of the conservatives. Unlike Alito and the others, Roberts never confirmed or denied his membership in the Federalist Society. I'm guessing the joint membership card offer got to him.

  • Paul.||

    See he put the court above political reproach by making decisions based on politics. That is actually what they are arguing. And yeah it if epically stupid.

    It's the affirmative action of judicial rulings: To avoid race based discrimination, you must consider the race of every applicant before hiring.

  • VG Zaytsev||

    I suspect Roberts, like an abused spouse, will be more easily bullied in the future and move his opinions further and further to the left as time goes on. Once you sell your self out it gets easier each successive time you do it.

    Yep

  • ||

    Given the open disdain that many congresscritters have recently expressed for the constitution, on the record, why would any judge give deference to the assumption that any given law is constitutional?

    Someone here pointed out a day or two ago an article in the atlantic where some leftist douche law professor claimed that the most important role of the court is to legitimize state building. To me that translates to being the mortar holding the bricks of tyranny together.

  • silent v||

    Had Roberts not flipped, the only three cases from this century that most voters can name (Bush v Gore, Citizens United and ObamaCare) would all have gone 5-4 along straight party lines. Roberts probably figured this would tarnish the image of the SCOTUS as impartial. If none of the liberal justices were willing to concur, he had to either flip himself or have his legacy tarnished.

  • Night Elf Mohawk||

    Or, his legacy is shiny now, right?

  • silent v||

    If you think respect for the Constitution is important for a SCOTUS justice, I have four words for you: Oliver Wendell Holmes Junior

  • Night Elf Mohawk||

    Here are four more:

    William Brennan
    Thurgood Marshall

  • kinnath||

    And all three would have been the right answer.

  • ||

    Isn't Kennedy considered a liberal judge?

  • Mo||

    Kennedy is center-right. He's a Reagan appointee.

  • marecek||

    At this point, he hardly seems center-right to me. I would now categorize him as HARD right. And if Kennedy is sore about Roberts' perceived "flip", perhaps he will now understand why Scalia was so sore over the years with Kennedy's many betrayals in the area of abortion, gay rights, and the death penalty.

  • marecek||

    First off, everyone seems to be assuming that the only possible reason Roberts might have flipped (if that IS what he did) is for fear of negative perception of the Court by liberal media. That strikes me as highly implausible. In response to silent v, I would suggest that, if Roberts felt all three decisions were correct and reflected the proper interpretation of the Constitution, then he would have voted with the Four Horsemen of the Apocalypse. What everyone here simply rejects out of hand and without consideration is the possibility that Roberts took serious the vows he made during his confirmation hearings to adhere to judicial restraint (a main tenet of which is not to invalidate Congressional legislation if it is possible to interpret it in conformity with the Constitution) and to be a mere umpire. Perhaps he saw the Four Horsemen as simply unloosed their moorings in the Constitution and running amok in the effort to force their radical conservative ideology into the Constitution. If Roberts balked at that, then he was doing his job. Dry your tears, Right-wing whiners - Roberts will be around for another 30 years at least issuing excruciatingly conservative decisions.

  • Mike M.||

    Merely looking at the picture of this cowardly, brown-nosing, sniveling, worthless little pussy is filling me with rage all over again.

  • tarran||

    The new results confirm that we are still not living on a happy planet. No country is able to combine success across the three goals of high life expectancy, high experienced well-being and living within environmental limits.

    OK. So let's look at the Ecological Footprint:

    The HPI uses the Ecological Footprint promoted by the environmental charity WWF as a measure of resource consumption. It is a per capita measure of the amount of land required to sustain a country’s consumption patterns, measured in terms of global hectares (g ha) which represent a hectare of land with average productive biocapacity.

    So I donwload the pdf and find:

    We use the Ecological Footprint, a metric of human demand on nature, used widely by NGOs, the UN, and several national governments.
    It measures the amount of land required to sustain a country’s consumption patterns. It includes the land required to provide the renewable resources people use (most importantly food and wood products), the area occupied by infrastructure, and the area required to absorb CO2 emissions. Crucially it includes ‘embedded’ land and emissions from imports. So the CO2 associated with the manufacture of a mobile phone made in China, but then bought by someone living in Chile, will count towards Chile’s Ecological Footprint, not China’s
  • tarran||

    Crap! Wrong thread!

  • SIV||

    Wrong thread ya idjit.

  • Paul.||

    I'm slightly confused. This post is written as if Roberts did switch his vote, whereas the title is asking the question.

    What's the concensus of court climate scientists?

    I've seen good arguments that he did switch his vote, and some that suggest he didn't.

    I'm leaning "did".

  • SIV||

    The CBS story confirms he did switch his vote.Why?remains the question.

  • Timrek||

    I still think a friendly call from Obama may have been the final nudge that swayed Roberts to change his mind. Obama and Buchanan were already tied as my least favorite presidents ever, but I never really had any SC Justice to match Taney on my "Horrible Judges of American History" scale. Now Roberts has passed Taney as the worst. At least Taney stuck to his foul pro-slavery ideology while Roberts is just a flip flopping weasel who feels his image in the media is far more important than upholding the idea of checks and balances, limited government, and the Constitution as the supreme law of this nation. Good job Jackhole. You've screwed America for an entire generation at least.

    The sad but mildly amusing epilogue is that Obama and Romney are now arguing over who can say the mandate is not really a tax the loudest.

  • BarryD||

    I guess I don't really understand why Obama's nudging didn't have the opposite effect.

    Wouldn't a President's attempt at bullying (especially when that President is such a sniveling pussy) cause a self-respecting justice to want to find a reason to vote the OTHER way?

  • rac||

    Two comments:
    1. Saying the taxing power is limitless is as bad as saying the commerce clause is limitless.
    2. Paying for this new entitlment is going to make this country more of an economic shithole than we are already quickly becoming.

  • lightning||

    What is the limiting principle on either the taxing power or the commerce clause? What case law or supreme court decision limits either of these two concepts?

  • ||

    The plain language of the constitution seems to be a pretty decent place to start for limiting principles.

  • lightning||

    Other than you, me, the Paul family, this blog, member of the military, and commenters to this blog - who actually pays any attention to that document or demands their elected representatives and judges follow it?

  • marecek||

    Would you listen to yourselves. Do YOU actually read the Constitution. The ignorance on display here is mind-boggling. DesigNate tells us the limiting principles are in the Constitution - okay, so which principles are they? If you know they are there, perhaps you could be so kind as to DesigNate them for us. Also, this judgment quite obviously does not stand for the principle that either power is limitless. This decision STATED the Commerce Power does not support the individual mandate (that sounds an awful lot like a limit to me), and the Lopez and Morrision decisions of the Rehnquist Court also placed limits on the Commerce Clause. As for the taxing power, the fact that the Court held that the mandate was valid as an exercise of the taxing power cannot be translated into the general proposition that the taxing power is limitless - that is patent nonsense. In any case, among other things, the taxing power is clearly limited by at least by several provisions of the Bill of Rights, such as equal protection, due process and the prohibition on expropriation.

  • lightning||

    Actually, the decision that Obamacare was an unconstitutional expansion of the commerce clause is mere dicta not that "Opinion of the Court". The majority of liberals did not join in this aspect of Roberts argument, hence it is NOT precendent. Your other argument that states, "...the general proposition that the taxing power is limitless - that is patent nonsense" - is nonsense in itself. The Supreme Court has consistently expanded the power of Congress to tax and regulate given the whole of case law. I am betting that prior to the Kelso descision you were one of those saying, "...but eminent domain is only done when the government has a need and people are appropriately compensated for their property". See the cr*p case law on this subject now. See also where the constitution states people shall be free from unreasonable seizure of property. If you think the taxing power is any different from eminent domain, you are extremely naive.

  • lightning||

    Who gives a cr*p why he changed his mind?! Man is sh*thead and has the integrity of a crackhead smuggling drugs for the Zeta cartel. He simply proved that he belongs in DC with the rest of swamp rats.

  • Tuna||

    The job of an umpire is to call a ball a ball and a strike a strike. Not to try and determine if his calls will upset the batter or the pitcher or one of the teams.

    When an umpire starts deciding calls on a basis other than if they are balls or strikes, the umpire should be fired. Too bad you can't fire a federal judge (well, technically you CAN, but it's basically impossible).

  • Raven Nation||

    It's really worse than that: his opinion seems to say that the government's pitcher was clueless so, as the umpire, I'm going to step in and pitch for him.

    The longer part of the Crawford story seems to be that Roberts was originally going to vote no, but changed his mind before the opinions were written. The dissenters refused to even acknowledge him because his opinion was so poorly reasoned.

  • Mr. FIFY||

    "Nice home you got here, Judge. Be a real shame if something should... happen to it..."

    "Boss, we have to get back. The CIA director wants to talk to us."

  • BarryD||

    Short of that, it doesn't seem that the President's threats would sway the Chief Justice. But I'm not Roberts, either.

  • Mr. FIFY||

    Never put anything past a politician. Think of it like karma; sometimes, it takes decades for karma to come back on the assholes in life, and sometimes it can happen a lot sooner.

  • Entitled Slacker||

    Yeah, I;m thinking somebody left a horse head in his bed or a substantially check under his door.

  • R C Dean||

    On the whole issue of whether the musings on the Commerce Clause amounts to anything other than mere dicta, there is this observation (hat tip: former Reasonoid James Taranto):

    "The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity." That is in Section III-C, the part of the his opinion dealing with the taxing power--and it is joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, which makes it part of the "Opinion of the Court."

    Now, whether that bare sentence, which is vigorously dissented from by some of the liberal justices, imports all the stuff that they did not join in, is an interesting question. I'm not so sure that it does.

    For one thing, there is lots of stuff in an "opinion of the court" that is dicta. Namely, anything not necessary to reach the decision rendered. And Roberts' Commerce Clause discussion is not necessary to reach the conclusion that the mandate is authorized under the taxing power.

  • Broseph of Invention||

    This is what I think as well. All that was decided is if and how Congress has the power to create the law. The Commerce Clause discussion may influence how future cases are decided by the Supreme Court, but it won't mean much to the lower courts. With such broad taxing power and a crafty Congress, the question may never need to be reached.

  • rac||

    Let's stop looking for silver linings in this huge fucking thunderstorm "Derecha", or whatever the fuck it is. The jackbooted assholes in power can do anything to us, as long as we allow them to.

  • Ken Shultz||

    Roberts has made the case for judicial modesty and deference to the legislature before, likening the court to an "umpire"

    If the equivalent of this were to happen in an important football game?

    Somebody would get a subpoena to look at the referee's financial statements and account for all of his income and all of his assets.

    I'm just sayin'.

  • Longtorso||

    I blame Evangelical Christian vermin who gave us Bush, who talked enough of a small govt game to get 'deregulation' wongly blamed for a govt caused housing crash and recession, who mindlessly followed Bush into Iraq, who mindlessly followed Bush as he shat on civil liberties, all leading to the Obama win.

    Then Bush appointed the ObamaCare swing vote.

    Fuck every Evangelical with Satan's dick. Every. Single. One. This country won't be safe until the Baby Jeebus goes the way of Zeus and Odin as a political club.

  • Pip from the forge||

    Conservatives are Christians. Christians believe that you are your brother's keeper. There is nothing inconsistent in Roberts' decision to uphold Christian values in the highest court (not counting God's).

  • Longtorso||

    There is nothing inconsistent in Roberts' decision to uphold Christian values

    Hence my desire to see every Evangelical given the STEVE SMITH treatment by Satan.

  • sunny black||

    *I* am my brother's keeper. ME personally.

    Not you. Not Barack Obama. Not Uncle Same. ME, me, me! I worry about my brother. You go f*ck yourself. Keep your hands off my brother. I worry about my brother. You worry about your brother. And the government needs to mind it's own damn business.

  • Broseph of Invention||

    Actually, "Am I my brother's keeper?" was said by Cain after he killed his brother Abel, in response to God. Kinda odd to attribute that term to Christians just because it's in the Bible. But I'm glad you haven't expressed a desire for Satan to sodomize me for my personal faith like Ultra Cool Dude Longtorso below. So edgy, that guy! Ready to toss a statue of Jesus into a pool of piss, that independent-minded rebel! But it's nice to know who never to take seriously.

  • VG Zaytsev||

    I not ready to blame the christians for Bush.

    That family's been full of statist douchebags for a century. The Ivy League Elites from whence Roberts sprang are even more antagonistic of christians that you are. The neo-con warmongers weren't evangelical christians and neither were the Wall Street cocksuckers that created the credit bubble, caused the depression and then talk their way through TARP bailouts.

    The commonality is east cost elites. The really smart people that are never held accountable no matter how bad they fuck up everyone else's reality.

    The christians are still useful allies against those assholes.

  • sunny black||

    Occam's razor: Axelrod discovered Roberts' stash of kiddie porn. The rest is judicial history.

    "Uh, I'm concerned about the role and reputation of the Supreme Court. Yeah! That's the ticket..."

  • PandyGandi||

    Sometimes you jsut have to throw your hands in the air and shout, Whos your Daddy!

    www.Global-Privacy.tk

  • L13||

    Roberts vote is shocking, but he did make a big point of supporting judicial modesty at his confirmation hearing, and stare decisis as well. I guess we should have taken him at his word. He had a chance to mark a limit to the abomination of New Deal jurisprudence, but instead he threw the window open to fan the statist fire even more. I still can't get my head around it!

    ****************

    I finally got a chance to start reading the entire ruling, starting at the back and Thomas' simple "NO!". One page, less than 300 words, a simple, elegant, "NO!".

    Can't wait to get to the front to see how Roberts pulls it off.

    Time for another drink for my lost country.

  • DrAwkward||

    I think Roberts thought he could appear acceptable to his critics while pulling a sly move, that will ultimately be shown to be too clever by half.

    I love silver linings and all, but this thing is an exquisite turd.

  • plusafdotcom||

    Might any of you consider that Roberts played a conservative hole card on this round?

    It's a TAX now, by their vote, and all of the things that Obama's promised about the HCA NOT being a "tax" can now be used by the Republicans against him.

    They can point at all of the lies the Democrats have told us about HCA not being a tax and rub their noses in it for the coming months, if they have the sense to do so.

    And he still gets to keep his day job for as long as he wants.

    Pretty shrewd, in my judgment.
    Nobody else sees that?

    .... whatever

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