Robert’s Decision Continues to Churn Political Waters
Washington. The day after Chief Justice John G. Roberts Jr. joined the Supreme Court’s four-member liberal wing to uphold the health care overhaul law, he appeared before a conference of judges and lawyers in Pennsylvania. A questioner wanted to know whether he was “going to Disney World.”
Roberts said he had a better option: He was about to leave for Malta, where he would teach a two-week class on the history of the Supreme Court.
“Malta, as you know, is an impregnable island fortress,” he said Friday, according to news reports. “It seemed like a good idea.”
The chief justice was correct to anticipate a level of fury unusual even in the wake of a blockbuster decision with vast political, practical and constitutional consequences. The criticism came from all sides. And it was directed not at the court as whole or even at the majority in the 5-4 decision. It was aimed squarely at him.
By Saturday, John Yoo, the former Bush administration lawyer, was suggesting in The Wall Street Journal that there had been a catastrophic vetting failure in 2005 when the administration was considering Roberts’ nomination
“If a Republican is elected president,” said Yoo, who teaches law at the University of California, Berkeley, “he will have to be more careful than the last.”
The attacks from the right were counterbalanced — by more attacks. They came from liberals unhappy with how the chief justice had reached his conclusion.
“The right is declaring defeat in the short term, and the left is declaring defeat in the long term,” said Pamela S. Karlan, a law professor at Stanford.
She said parts of Roberts’ opinion in the health care case had laid the groundwork for legal doctrines that could roll back liberal programs.
There were, of course, liberals happy with finding themselves on the winning side with a court that they say is usually hostile to their interests, and conservatives who liked some of the court’s reasoning on limiting federal powers.
But some on the right seemed particularly bitter, rejecting the notion that Roberts was, in the words of The Journal’s editorial page Monday, “a battle-loser but war-winner.” His decision, the editorial went on, “is far more dangerous, and far more political, even than it first appeared last week.”
Indeed, the dissatisfaction of conservatives grew as they studied the decision and found clues that the chief justice might initially have been in the majority to strike down the law, only to switch sides. A report from CBS News on Sunday that he had, in fact, changed his mind added to the anger.
In his opinion, Roberts said the health care law’s requirement that most Americans obtain insurance or pay a penalty could be justified as a tax, and the court’s four liberal members — justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — joined that part of the ruling. But the chief justice also said that the requirement could not be justified under Congress’ power to regulate interstate commerce, in agreement with the other three conservatives — justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — and the court’s usual swing member, Justice Anthony M. Kennedy.
It was the dissenting opinion of those four justices that attracted the most attention, as it was studded with hints that they had once been on the winning side across the board. The dissenters did not, for instance, formally join any part of Roberts’ opinion, although they agreed with him on several points. The usual practice would have been to note that the dissenters concurred in part in the court’s judgment. Nor did they meaningfully engage with the chief justice’s opinion where the two sides disagreed, which could be a sign of hurry or frustration.
The joint dissent also referred to the opinion of Ginsburg, which concurred in part and dissented in part from the chief justice’s opinion, simply as her dissent, suggesting that it was once only that. Ginsburg’s opinion was quite acid in its discussion of the commerce clause ruling, a tone that seemed at odds with the liberal side’s overall victory.
But there is also evidence pointing the other way. The argument that carried the day — that the individual mandate could be considered a tax — was one the chief justice pursued at the arguments in March.
It is not particularly unusual for justices to change their minds in the course of writing and exchanging drafts. Indeed, said Laurence H. Tribe of Harvard Law School, “the more it happens, the more it gives you confidence that there was a serious exchange of ideas.”
But the possibility that conservatives had victory within reach only to lose it seemed to infuriate some of them. The CBS News report, attributed to two sources with “specific knowledge of the deliberations,” appeared to give voice to the frustrations of people associated with the court’s conservative wing. It was written by Jan Crawford, whose 2007 book, “Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court,” was warmly received by conservatives.
In a 2009 interview on C-Span, Thomas singled her out as a favorite reporter.
‘’There are wonderful people out here who do a good job — do a fantastic job — like Jan Greenburg,” Thomas said, referring to Crawford by her married name at the time.
Yoo, the former Bush administration official, said her report appeared to underscore the chief justice’s failure.
‘’If the report is true, Chief Justice Roberts has not just made a mistake of constitutional interpretation, but of political leadership,” Yoo said in an e-mail. “His job is not to finesse the place of the Supreme Court in the political world, in which he and most justices are rank amateurs, but to get the Constitution right first and then defend the institution second.”
The New York Times