Politics & Policy

The Flip That Will Flop?

The decision was apparently more political than legal.

When asked last month how the Obamacare case would be decided, Justice Ruth Bader Ginsburg repeated an old line: “At the Supreme Court, those who know don’t talk. And those who talk don’t know.” Well, that line doesn’t seem so apt in the era of news that’s instantly and constantly updated, 24/7.

The week before the Supreme Court announced its decision, the White House was clearly hinting to many in the media and on Capitol Hill that they expected a 5–4 opinion that would hinge on the taxing-power issue. Did someone leak? Sunday on Face the Nation, Jan Crawford of CBS News said that two reliable sources told her that Roberts originally voted, in late March, with the four conservative justices to invalidate the individual mandate. According to Crawford, Roberts suddenly changed sides some six weeks later and then resisted “a month-long desperate campaign by the conservative justices to bring him back to the fold.”

I’ve learned from my own sources that after voting to invalidate the mandate, the chief did express some skepticism about joining the four conservatives in throwing out the whole law. At the justices’ conference, there was discussion about accepting the Obama administration’s argument, which was that, if the individual mandate was removed, the provisions governing community rating and guaranteed issue of insurance would have to go too but that the rest of the law might stand. The chief justice was equivocal, though, in his views on that point.

That Roberts ultimately decided to cast the deciding vote to uphold the individual mandate is disappointing but not troubling in and of itself. As Ed Whelan has written for National Review Online: “There is certainly nothing inherently wrong with a justice’s changing his position during the opinion-writing stage (or any other stage) of a case. On the contrary: a justice’s duty is to get the case right, and if that entails a change of mind, or two, or more, so be it.”

But that his switch occurred in the context of the Washington zeitgeist at the time is disturbing. As Jan Crawford reported: “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. . . . 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.”

Indeed, Senator Patrick Leahy (Vt., D.) , the chair of the Judiciary Committee, suddenly took to the floor on May 14 and directly addressed Roberts, urging him in harshly partisan tones to uphold Obamacare and maintain “the proper role of the judicial branch.”

Stewart Baker, a partner at the Washington law firm Steptoe & Johnson, writes at the Volokh Conspiracy that he found the whole campaign against Roberts weird and unusual, given that the justices’ conference vote on Obamacare had been held six weeks earlier. Why “would the chair of the Judiciary Committee risk the appearance of trying to harshly strongarm the Court when his remarks wouldn’t make the slightest difference?” he asks. “The Leahy speech reads like it was written for an audience of one. It offers flattery and it offers threats, all of them personalized to appeal to Chief Justice Roberts alone.”

We may never know if the intended “audience of one” was at all influenced by the sudden flash of liberal invective against him. But as the Wall Street Journal editorialized on Friday, any vote switch made in that atmosphere could be

far more damaging to the Court’s institutional integrity that the Chief Justice is known to revere than any ruling against ObamaCare. The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties.

Certainly, there are clues that if Roberts had a change of mind, it was sudden. Referring nine separate times to Justice Ginsburg’s concurrence in upholding Obamacare, the four conservative justices in their dissent take the extraordinary step of calling Ginsburg’s concurrence “the dissent.” In addition, as Crawford noted, the four dissenters “refused to join any aspect of his [Roberts’s] opinion, including sections with which they agreed. . . . They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.” If they weren’t, it may explain why Associated Press reporter Jessica Gresko reported that Justice Anthony Kennedy appeared visibly angry during the public reading of the Obamacare decision on Thursday.

There may be another reason for the unusual nature of the conservative dissent. Roberts’s opinion is simply not up to his normal high standards and, indeed, engages in sloppy reasoning. Even commentators who agree with his conclusion don’t buy the arguments for it.

David Brooks, the New York Times columnist, told NPR on Friday that Roberts “argued illogically and overly cleverly.” Brooks called his opinion “not very persuasive. But he had to get to a certain result, and he was going to find a way by hook or by crook.”

Even Roberts admitted in his opinion that he wasn’t claiming that the individual mandate was best viewed as a tax. Remarkably, he stated that the “most straightforward reading of the mandate is that it commands individuals to purchase insurance.” He was instead addressing only whether the reading of the provision as a tax is “fairly possible,” thereby giving Congress a planetary-sized benefit of the doubt.

For Americans who wanted the individual mandate declared unconstitutional — a group that transcends ideology and comprises 68 percent of voters, according to the last New York Times/CBS poll — watching White House chief of staff Jack Lew still insist to ABC News on Sunday that Obamacare isn’t a tax but is instead a penalty was rubbing salt into the wound created by Roberts. “If you look at the decision, which is very complicated, there are arguments there that support different theories,” Lew conceded. “There is a power [to enact such a requirement], whatever you call it.”

The Obama administration was greatly relieved by Roberts’s rescuing them on the taxing power. They had largely ignored the issue. In its reply brief, the government devoted a mere 21 lines to the issue. During oral arguments, the longest discussion of the taxing power was just over 50 words.

Initial reaction to Roberts’s creative upholding of Obamacare has been negative among voters at large. A new Rasmussen Reports national poll of 1,000 voters finds that those who think justices pursue their own political agenda instead of remaining generally impartial is now at 56 percent — up five points from a week ago. Only half as many — 27 percent — believe the justices remain impartial.

But the Supreme Court does have its fans. The Political Class, as Rasmussen calls it, which makes up, at most, 10 percent of the adult population, is largely pleased. Among voters whom Rasmussen finds to belong to the Political Class, positive ratings of the Court have doubled, to 55 percent from the 27 percent he found a week ago. (Rasmussen defines the Political Class as those who, in at least two of their answers to the following questions, identify with the government: Whose judgment do you trust more: that of the American people or America’s political leaders? Has the federal government become its own special-interest group? Do government and big business often work together in ways that hurt consumers and investors?)

Rasmussen categorizes all other voters as Mainstream Americans, and they are now clearly more negative about the Supreme Court. “A week ago, 34 percent of Mainstream voters said the Court was doing a good or excellent job and 17 percent gave it poor ratings,” Rasmussen tells me. “The numbers have now reversed — 22 percent positive and 36 percent negative.”

The public reaction against the Supreme Court ruling shows that, while the Political Class won the inside-the-Beltway battle over Obamacare, the war isn’t over yet. As the chief justice properly noted, it is now up to the voters in November to decide if Obamacare survives politically.

Randy Barnett, the Georgetown law professor who was an intellectual spark plug for the legal arguments against Obamacare, is optimistic about the future. “The fact that this decision was apparently political, rather than legal, completely undermines its legitimacy as a precedent,” he tells me. “Its result can be reversed by the people in November, and its weak-tax-power holding reversed by any future Court without pause.”

I won’t go that far, but I will hazard a guess that Chief Justice Roberts is more likely to see his opinion upholding Obamacare collapse, a legal sandcastle blasted and eroded by the shifting tides, than to see it endure as the solid edifice he hoped he had built.

— John Fund is national-affairs columnist for NRO.


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