Jay Reding.com

The Switch In Time That Betrayed Nine

Veteran Supreme Court reported Jan Greenberg reports what many had speculated—that Chief Justice John Roberts switched his vote on ObamaCare, saving the bill from being declared unconstitutional. Justice Anthony Kennedy, the crucial “swing judge” even tried to get Roberts back on the side of the Court’s conservative bloc, but to no avail.

Chief Justice John Roberts

Chief Justice John Roberts of the United States Supreme Court (AP Photo)

What Roberts did, in other words, was a betrayal of his principles as a judge. Greenberg explains why Roberts switched his vote:

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.

There were countless news articles in May warning of damage to the court – and to Roberts’ reputation – if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. 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 problem with Roberts’ switch is that it doesn’t accomplish what he was apparently tempted to do. Yes, right now the left-wing media is praising Roberts for taking their side and saving ObamaCare, but does anyone believe that will last? If Roberts presides over another 5-4 defeat of a major liberal initiative, he’ll be damned and criticized as before. The legitimacy of the Supreme Court will always be called into question by the left so long as the Supreme Court does its job in enforcing substantive limits on the power of the federal government. All Roberts has done is buy some temporary credit.

And that temporary credit comes at the expense of the Constitution. Ostensibly, Roberts’ opinion limits the government’s ability to use the Commerce Clause to justify mandates on individuals. But there is reason to believe that future Courts will not be bound by that language as precedent. The benefit of Roberts’ alleged limitation of the Commerce Clause may not be anywhere near as great as some conservative commentators are making it to be.

Not only that, but the logic used to justify upholding the mandate as a tax is not consistent. That argument was generally rejected by lower courts, and not taken seriously during oral arguments. The whole point of a tax is to raise revenue—which the individual mandate is not supposed to do if it actually works. If you refuse to pay a tax, the government can fine you or put you in jail—yet the individual mandate is not enforceable in that manner. Congress did not intend to turn the individual mandate into a tax, and as much as Congressional intent matters in interpreting a statute, Roberts’ decision contradicts it. The dissent treats Roberts’ arguments on the tax issue with a thinly-veiled contempt—and largely for good reason.

Roberts’ decision comes off as nakedly political—and even Roberts himself seems to want to back away from its full consequences, painting it as a choice that he did not want to make by one he made because the law demanded it. But his legal arguments are so thin that his protestations ring hollow: the argument that Roberts upheld ObamaCare in the vain hopes of preserving the legitimacy of the Court in the eyes of The New York Times seems to be the most likely explanation.

But a Justice of the Supreme Court of the United States, no less the Chief Justice, should not answer to the editorial board of The New York Times. Roberts’ initial vote was the correct one: the individual mandate is an unprecedented intrusion upon the individual liberties of the people of the United States. It is not justified in a system where we have a federal government of limited and enumerated powers. Seven Justices voted that the federal government cannot use federal funding to coerce a state into enacting a federal policy: so why can the federal government use the coercion of taxation to force individuals into supporting a federal policy that would not be otherwise justified under the Constitution? The answer should have been that the federal government can no more justify the individual mandate through taxation than they could demand that individuals quarter soldiers in their homes or pay a tax “penalty.” Both are a naked end-run around the limits placed upon the federal government by the Constitution.

Chief Justice Roberts may have justified his decision by saying that it would preserve the reputation of the Court: but he is wrong. The Court should be above the whims of politics and should act in accordance with law rather than than the opinions of newspaper editorialists. Roberts’ switch on ObamaCare was a betrayal, and however justified it diminishes the legitimacy and the independence of the Supreme Court. That was clearly not the Chief Justice’s intent, but will be the outcome.