Chief Justice John Roberts in the spotlight after Supreme Court health care decision
A new CBS News report suggests that Chief Justice John Roberts switched his original position on President Barack Obama's health care overhaul, raising charges of politicization and pressure on the court.
The day after the ruling was announced, Sen. Mike Lee, R-Utah, a former clerk to Justice Sam Alito, told The Washington Examiner that there were signals within the dissent that one might see when a vote changed, but the CBS article took the suggestion mainstream. A new Salon article Tuesday said that Roberts wrote both the majority opinion and much of the dissent on the health care law, bolstering the possibility of a vote switch.
Theories quickly developed to explain why Roberts might have changed his position on the law.
Some have suggested that Roberts, who has often discussed the need to preserve the integrity of the bench, may have been swayed by outside influences. In April, Obama said overturning the law would be an "unprecedented, extraordinary step." In May, Sen. Patrick Leahy, D-Va., suggested from the Senate floor that voting against the health care law would be committing judicial activism. Other sources suggested impeaching the Supreme Court if it overturned the law, running against the court in the presidential election and rethinking the use of judicial review.
"As Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it," Jan Crawford wrote in her CBS report.
"The case raised entirely new issues of power. Never before had Congress tried to force Americans to buy a private product; as a result, never before had the court ruled Congress lacked that power. It was completely uncharted waters," Crawford said. "To strike down the mandate as exceeding the Commerce Clause, the court would have to craft a new theory, which could have opened it up to criticism that it reached out to declare the president's health care law unconstitutional. Roberts was willing to draw that line, but in a way that decided future cases, and not the massive health care case."
If the reported switch in opinion came due to political pressure, Roberts will have left a legacy that stains the court, an Investors Business Daily editorial said.
"If Roberts wanted to make the court look politically neutral, he failed miserably," the editorial said. "Nothing could be more political than the head of the bench rewriting bad law to avoid appearing political. If Roberts hoped to burnish the court's reputation, he succeeded only in staining it ... By all accounts, Roberts didn't play chess. He played politics, which is beyond outrageous."
"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," Peter Suderman wrote at Reason.com. "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."
The final 5-4 decision upholding the mandate occurred because Roberts "effectively redrafted the statute," making the mandate a tax in order to make it constitutional, Marc Thiessen wrote at The Washington Post, and it should be a lesson that new Supreme Court appointments must have the "the intestinal fortitude not to be swayed by pressure from The New York Times, the Georgetown cocktail circuit and the legal academy."
"If the assumption is right, that he thinks this was unconstitutional but found a way to uphold it to preserve the integrity of the court, then he really ought to resign because it proves that he doesn't have the judicial fortitude to do the job that he's been chosen to do," said John Eastman, a professor of law at Chapman University, during an interview on The O'Reilly Factor.
Some defended Roberts, saying that the move may have been political, but in a way that is consistent with the court's history and would protect the court's standing.
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