Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold.
"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this."
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.
...Because Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the court's historic decision. He kept it for himself.
Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.
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.
Keep in mind, that in early April, right after the Court heard the case, Richard Milhous Obama essentially bullied the Court publicly to uphold his signature law. stating it would amount to "judical activism" if Obamacare was found unconstitutional.
President Barack Obama on Monday issued a rare, direct challenge to the Supreme Court to uphold his historic health care overhaul, weighing in with a vigorous political appeal for judicial restraint. He warned that overturning the law would hurt millions of Americans and amount to overreach by the “unelected” court.
Obama predicted that a majority of justices would uphold the law when the ruling is announced in June. But the president, himself a former law professor, seemed intent on swaying uncertain views in the meantime, both in the court of public opinion and in the minds of the justices about not overstepping the high court’s bounds.
“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” he said at a Rose Garden news conference.
This was a shot across the bow to the Supreme Court, who were attacked, in an unprecidented move, by the Bully-in-Chief Obama during the 2010 State of the Union address.
Never mind too, that regarding the "taxing" aspech Roberts used to re-write Obamacare, Mark Levin's organization, Landmark Legal Foundation, filed a brief with the court that stated in plain English:
Finally, although never considered a “tax” priorto this litigation, the federal government’s defense of the individual mandate’s penalty provision as a tax
fails to satisfy every test for a tax permitted by the Constitution under the Apportionment Clause as well as the taxing power of Article I, Section 8 and the
16th Amendment. As with their determination that the individual mandate was unconstitutional, the lower courts’ conclusion that the penalty provision is
likewise unconstitutional should also be upheld.
Alexa Shrugged has a great analysis at her blog:
The courts are supposed to be independent and above politics. The notion that the President, the head of a competing branch of government, could browbeat the court into a decision is especially galling. Not to mention the blackmail from the mainstream media and liberal elites, threatening the legitimacy of the court based solely on the outcome of the decision. The fact that a chief justice could be influenced by these external forces is shameful and unbecoming of the prestigious position he holds.
I can't help but think such a chief justice is unfit for the role. His duty is to the Constitution, not to his own legacy, not to Congress or the President, and not to the perceptions of the Supreme Court.
The perceived authority of the Supreme Court has ebbed and flowed over the last 200 plus years. It is extremely short-sighted for Roberts to think he has to safe-guard today's perception. The Supreme Court is much bigger than him, it is not going away, no matter how much the liberals pout and cry. It is disgusting to think that their threats of a temper tantrum would make him change his mind. This is similar to when liberals wanted to abolish the Electoral College after Bush v. Gore. They ridiculously want to change the rules when they don't win the game. But our institutions, while not perfect, were expertly designed and are meant to endure temporary partisan heartache.
Justice is supposed to be blind, but Roberts is wide-eyed to the external pressures he is supposed to ignore. This is precisely why justices are given lifetime appointments - so that the politics of the day do not influence them. They are to have no constituencies of their own, no fickle voters to appease, their only duty is to their oath to "support and defend the Constitution of the United States."
One must stand with the Constitution, not cave into the threats to destroy it. Unfortunately, Roberts does not have that kind of courage. Yes, Chief Justice Roberts is a wimp. The chief justice of the Supreme Court should not be susceptible to blackmail and professional threats. This sets an extremely dangerous precedent. How can the Constitution be upheld when the leader in charge of safe-guarding it can be manipulated? What other outrageous laws could President Obama enact in - God forbid - a second term that Roberts will feel pressured to uphold?
Certainly, Roberts showed in the Obamacare decision he lacks the temperment to be a Chief Justice, let alone being a justice, if he is going to put personal favor or the imge of the court above the Constitution.