Last Friday on NPR, liberal columnist E.J. Dionne said something very revealing about why Chief Justice John Roberts decided to affirm the constitutionality of ObamaCare. The remarks proved even more enlightening when we learned for a certainty from peerless Supreme Court reporter Jan Crawford that Roberts did indeed change his mind a month after voting it down with the conservative bloc.
“I think Justice Roberts in this case saw . . . the attacks that [the high court] was facing from lots of people — including me, I should say — were just going to escalate,” Dionne said. This was a problem for Roberts, the pundit surmised, because Dionne & Co. were raising doubts about “the legitimacy of the court, which has already been called into question by decisions from Bush v. Gore through Citizens United.”
This rhetorical assault against the court “was going to escalate further,” Dionne said. “And I think he was trying to avoid that.”
Dionne, Crawford tells us with the benefit of unnamed sources, got it exactly right. Roberts initially voted with the conservatives that the mandate requiring the purchase of insurance was unconstitutional. But, writes Crawford, “over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow.”
This mattered, says Crawford, because “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.”
And so, sources told Crawford, Roberts got “wobbly.” And cowardly as well, in some sense — since, after he decided to change his vote, he pleaded with Justice Anthony Kennedy to join him, presumably to give him some ideological cover.
I say “cowardly” because the opinion Roberts wrote betrays no hint that he changed his mind honestly. Instead, he simply asserted that the “penalty” explicitly so designated by Congress was, in fact, a “tax” — because if it were a penalty it would be unconstitutional, in his view. Therefore, it just wasn’t.
An honest revision would have required Roberts to come to a different conclusion based on a deeper understanding. Instead, he just cobbled together an argument that even he didn’t seem to believe in order to come to the result he wanted.
It was a result he sought because he wanted to “save the court.” But from what?
Our system grants federal judges lifetime tenure precisely to shield them from political pressure. Of course, the Supreme Court has often fallen short of that ideal. The early 20th century political wit Finley Peter Dunne, writing in the voice of Chicago saloonkeeper Mr. Dooley, famously declared flatly that “the Supreme Coourt follows th’ illiction returns.”
Yet the polls show the unpopularity of ObamaCare, as did the overwhelming results of the election in November 2010 that followed the bill’s passage. So, if Roberts had been following election returns and public opinion, he wouldn’t have hesitated to overturn.
No, he seems to have flip-flopped over worries about the hostility a 5-4 decision overturning ObamaCare would generate among pundits. No, let me be more precise — among liberal pundits like E.J. Dionne and the editorialists at The New York Times.
It seems astonishing that the chief justice of the United States would be motivated by fear of E.J. Dionne and the like.
But there it is. And if this is indeed why the chief justice changed his vote — out of fear of attacks on the court’s legitimacy by scribblers like me — then the court’s legitimacy deserves to be challenged.
What legitimacy does a decision on the most important case of the last decade have if a justice came to it for reasons other than his understanding of the law?
Not to mention that the naked intellectual cynicism on display in the Roberts opinion has satisfied no one.
In her concurring opinion, Justice Ruth Bader Ginsburg heaps scorn upon it. The dissent by the four conservatives whom Roberts abandoned “deliberately ignored Roberts’ decision,” according to Crawford’s reporting, “as if they were no longer even willing to engage with him in debate.”
And the White House, whose signature piece of legislation Roberts saved, spent the weekend feverishly denying that the mandate to buy insurance is a “tax” — even though that’s the sole ground on which Roberts agreed to allow the mandate to stand constitutionally.
The Roberts opinion is nothing less than an intellectual, political and moral scandal.