Me, the other day:
That’s what I think happened. I think Roberts was initially going to vote with the other four and flinched, grabbing on to the tax argument lifeline.
Jan Crawford, in a sprawling multi-page CBS news report that his been burning up memeorandum all day:
Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.
“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.
The inner-workings of the Supreme Court are almost impossible to penetrate. The Court’s private conferences, when the justices discuss cases and cast their initial votes, include only the nine members – no law clerks or secretaries are permitted. The justices are notoriously close-lipped, and their law clerks must agree to keep matters completely confidential.
But 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.
When you stop pretending that what the Supreme Court does is all about the law and precedent and deeply held views about the constitution and recognize that they are really nothing more than another political branch of government, it’s not so hard to to see what clearly happened. You don’t need to have a firm understanding of the law, you need to understand people and politics. And if I had to bet, it was Kennedy’s people who leaked all this, because most of that Crawford piece reads like a mash note to him:
On the surface, Kennedy would appear to have been Roberts’ best shot to persuade. The other three justices – Thomas, Antonin Scalia and Samuel Alito – are seen as more solidly conservative and much less susceptible to pressure.
After all, it was Kennedy who “betrayed” conservatives in 1992, when he flipped his vote in a key abortion case that could have overturned Roe v. Wade, the landmark decision that guaranteed a woman’s right to abortion.
In the 1992 case, Planned Parenthood v. Casey, Kennedy initially was with conservatives, but then forged a last-minute alliance with Justices Sandra Day O’Connor and David Souter to put Roe v. Wade on more solid ground than even the original decision itself.
Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy – in other words, changeable and too moderate.
That’s not entirely fair to Kennedy. In fact, there are underlying and consistent themes in his jurisprudence, much more so than in the jurisprudence of O’Connor. Kennedy has a libertarian streak, and he is skeptical of expansive government power over individuals. In fact, if there’s an issue of an individual versus invasive government, Kennedy sides with the individual.
As a result, Kennedy supports the right to possess a firearm for self-defense AND a woman’s right in the context of abortion. He opposes certain laws that discriminate against homosexuals or restrict a person’s freedom of speech.
Kennedy also is strong on issues of federalism – and is remarkably consistent. His opinion in a 1999 case, Alden v. Maine, is considered one of the Court’s finest in that area. Ruling that states were immune from private lawsuits in state courts, Kennedy wrote: “Sovereign immunity derives not from the Eleventh Amendment but from the federal structure of the original Constitution itself.”
And in a 1995 term limits case, when the Court rejected state efforts to impose term limits on Members of Congress, Kennedy wrote a separate, concurring opinion to make a point about federalism:
“Federalism was our nation’s own discovery. The framers split the atom of sovereignty . . . It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.”
Those structural boundaries, Kennedy believes, help protect the individual from runaway government power, and are key components to protecting liberty.
All of that dovetails with Kennedy’s position on the individual mandate in the health care law. Close associates of Kennedy never thought he would waver in the case once he recognized the federal mandate as an encroachment on individual liberty (points Kennedy later would make in his sections of the joint dissent).
In fact, Kennedy was the most forceful and engaged of all the conservatives in trying to persuade Roberts to stand firm to strike down the mandate. Two sources confirm that he didn’t give up until the very end.
If that isn’t the journalistic equivalent of a tugjob in the backseat at the drive-in, I don’t know what is. Ron Fournier must be jealous.