The story behind Supreme Court Chief Justice John Roberts’s majority opinion in NFIB v. Sebelius gets stranger and stranger.
First, Roberts stunned the American left, middle, and right on June 28 when he joined Court liberals and upheld the (un)Affordable Care Act — AKA Obamacare.
Next, Jan Crawford of CBS News reported that Roberts originally voted to overturn Obamacare, but then performed a high-stakes, eleventh-hour backflip. In essence, Roberts cracked under public pressure from the Left. To date, neither Roberts nor anyone else has challenged Crawford’s jaw-dropping disclosures.
Amazingly, Crawford quoted unnamed sources with intimate knowledge of the justices’ deliberations. In a city that leaks like the hull of a torpedoed warship, the Court’s inner sanctum traditionally is as impermeable as the bridge of an attack submarine. The fact that the justices, their clerks, or other top staffers are blabbing outside the palace of justice says enough about this mess to fill a law dictionary.
In an even more bizarre twist, it seems that Roberts did not just switch rather than fight. According to a July 3 Salon.com article by University of Colorado at Boulder law professor Paul Campos, Roberts wrote the majority ruling after drafting three-quarters of the dissenting opinion, which began as the majority decision to jettison Obamacare like a sack of medical waste. If true, Roberts achieved a milestone in judicial hermaphroditism.
Perhaps the next robe to drop will reveal that Roberts secretly authored the entire (un)Affordable Care Act in his office and then dispatched Da Vinci Code author Dan Brown through secret tunnels far beneath Capitol Hill to hand-deliver the 2,801-page parcel to then-speaker Nancy Pelosi (D., Calif.).
Until that bombshell lands, the question remains: Why did Roberts defect?
“Striking down the law at this moment would have brought the Court to a tipping point at which Roberts’s political opponents, at least, would afford him no legitimacy at all as the ‘umpire’ he promised to be in his confirmation hearings,” Jonathan Chait wrote in the July 9 issue of New York magazine. “He stared into that abyss and recoiled.”
What did Roberts worry would happen to him personally or to the Court institutionally? Even if detractors called the umpire a shortstop, what could anyone actually do to Roberts or the Court? Would Congress cut Roberts’s salary? Has Congress ever cut anyone’s salary? Would President Obama padlock the Court’s entrance? Let him try. Would the American people vote the Supremes out of office? Thankfully, they never appear on ballots (nor should any judge, anywhere). Barring impeachment for high crimes and misdemeanors, the only person qualified to remove a Supreme Court justice from office is the Washington, D.C., coroner.