Speaking on Face the Nation, Jan Crawford has cited “two sources with specific knowledge of the Court’s deliberations” who confirm what many here and elsewhere suspected: Chief Justice John Roberts had originally voted with the four conservative justices to invalidate the individual mandate. According to Crawford, the Chief changed sides and then resisted “a month-long desperate campaign by the conservative justices to bring him back to the fold.”
As Ed has already asserted here, there is nothing about switching votes in a case that is inherently inconsistent with the role of a judge. But the circumstances of this particular case are troubling because the evidence suggests that the Chief was swayed by political considerations.
The switch in time that saved Roberts from Rosen was apparently precipitated by President Obama’s court-bashing strategy. The Chief’s apologists would like his performance in this case to go down as an analog to Marshall’s performance in Marbury vs. Madison. But Crawford’s revelation makes John Yoo’s comparison of Chief Justice Roberts to Charles Evans Hughes the more appropriate one. It might stick, though I’d be far more satisfied if President Obama’s behavior was compared to FDR’s.
The Chief famously promised to behave like an umpire. President Obama took him at his word and behaved like a famous coach who badgers umpires until they start changing the outcomes of games. Obama didn’t need a court-packing plan — he had a 24/7 news cycle, congressional mouthpieces repeating his talking points, and innumerable media channels to distribute and amplify his assaults on the judicial branch. And his bullying appears to have produced the result he wanted. But it came at the expense of the legitimacy of the decision and the integrity of the Court itself. Some legacy.