Chief Justice John Roberts

There has been a lot of angst in conservative circles over the bizarre reasoning used by Chief Justice John Roberts in National Federation of Independent Business v. Sebelius, the case that saved Obamacare. In that case, you’ll recall, the Supreme Court ruled by 5-4 that the individual mandate was actually a tax and therefore permissible. “How can that be?” is a thought a lot of us ere thinking at the time and now we know the answer. It can’t be.

CNN’s “CNN legal analyst & Supreme Court biographer” Joan Biskupic purports to give us the behind the scenes story. It is coming from CNN and therefore needs to be treated with extreme caution because there is at least a 50-50 chance that it is disinformation, but it rings true and because of that it is ominous. This is the set up:

Roberts’ moves behind the scenes were as extraordinary as his ruling. He changed course multiple times. He was part of the majority of justices who initially voted in a private conference to strike down the individual insurance mandate — the heart of the law — but he also voted to uphold an expansion of Medicaid for people near the poverty line.
Two months later, Roberts had shifted on both.

The final tallies, 5-4 to uphold the individual mandate and 7-2 to curtail the Medicaid plan, came after weeks of negotiations and trade-offs among the justices.

The story starts with the first conference held after an extraordinary three full days of arguments on the case. According to Biskupic, at this initial vote it was 5-4 against Obamacare. But the vote changed after Roberts became squeamish about invalidating the whole law.

Roberts did not want the entire law to fall. A pro-business conservative, he understood the importance of the insurance industry to US businesses, and he was genuinely concerned about invalidating an entire law that had been approved through the democratic process to solve the intractable health care problem.

But his four fellow conservatives believed that if the individual mandate was going down, it should take the whole law with it. They believed all the pieces were interlocked. Roberts thought the individual mandate was entwined with only two other provisions, those known as the “community rating” and “guaranteed issue.” The community-rating section prevented insurers from charging some individuals higher premiums than others based on health status. The guaranteed-issue section required insurers to cover people regardless of pre-existing conditions.

As was his prerogative as chief justice, Roberts chose to write the majority opinion, giving him the ability to shape what the court would ultimately say. Senior liberal justice Ginsburg was ready to write for the dissenting foursome.

Soon after, Roberts began trying to persuade Kennedy to find that the unconstitutional insurance requirement could be severed from the rest of the law. But Kennedy — often a swing vote on high-profile cases — was firm in his position. He was puzzled, and then put off, by Roberts’ view that the ACA provisions could be severed.

This, to a non-lawyer, is sort of scary. In my narrow and crabbed view of the law, it is pretty black-and-white. The individual mandate was forcing perfectly healthy people to buy a product they might not want, probably didn’t need, and, in many cases, couldn’t afford. The fact that the Democrats didn’t make the mandate severable from the rest of the law is a clear indication that they knew the mandate was illegal and simply dared the Supreme Court to invalidate Obama’s signature program. And in John Roberts they had their man–cold. Following Robert’s logic, he could find that a bill of attainder was actually a form of a trial and uphold a law outlawing conservatives. Quite honestly, the sky is really the limit on what you can find to be permissible if you aren’t terribly concerned about the law but scared sh**less of the possible outcome.

Later in April, Roberts tried another path. He began exploring whether, as the Obama administration had argued, the individual mandate could be upheld as a tax. (CBS’s Jan Crawford reported earlier on Roberts’ reversal on the mandate, but the full story of Roberts’ switch, including on Medicaid expansion, and the changed votes of two liberal justices is detailed now for the first time.)

The chief justice then turned to Breyer and Kagan, the liberals most likely to work with him on contentious issues, to see if they could find common ground.

At the same time, Roberts began incorporating arguments that would invalidate the Medicaid expansion. This was a strange turn. None of the lower courts that had taken up the ACA had rejected the Medicaid expansion, and it wasn’t seen as controversial in terms of constitutional debate and public controversy.

Roberts posited in a draft opinion that Congress had in effect held “a gun to the head” of the states by conditioning all Medicaid money on the expanded coverage. Yet he was not prepared to find that the expansion had to be scrapped altogether, only that states could not be forced to join through the leverage of losing all Medicaid funding.

Breyer and Kagan had voted in the private March conference to uphold the new Medicaid requirement, and their votes had been unequivocal. But they were pragmatists. If there was a chance that Roberts would cast the critical vote to uphold the central plank of Obamacare — and negotiations in May were such that they still considered that a shaky proposition — they were willing to meet him partway.

I think Roberts got the Medicaid expansion exactly right, but he didn’t need Breyer and Kagan to do that. The Medicaid expansion was already dead as of the first conference.

Perhaps Roberts’ move was born of a concern for the business of health care. Perhaps he had worries about his own legitimacy and legacy, intertwined with concerns about the legitimacy and legacy of the court. Perhaps his change of heart really arose from a sudden new understanding of congressional taxing power. However the chief would explain it — and he has not explained it beyond his written opinion — the case added a new dimension to a man who insisted that he always decided cases based on the law.

Viewed only through a judicial lens, his moves were not consistent, and his legal arguments were not entirely coherent. But he brought people and their different interests together. His moves may have been good for the country at a time of division and a real crisis in health care, even as they engendered, in the years since, anger, confusion and distrust.

I don’t believe it takes a lot to understand what happened here. He was looking at a 5-4 split invalidating a law that the president had devoted a lot of political capital to put in place. He was afraid the backlash from the decision would make the Supreme Court look as though it had acted to damage Obama politically. Roberts decided to give Obama a win when he couldn’t get his fellow conservatives to engage in results-oriented jurisprudence. In doing that he could limit the impact of the ruling by writing the decision. In return he got a 7-2 vote on Medicaid.

Just because you can understand what happened doesn’t make it right or honorable. And what we saw here is ominous. The implication is that Roberts will not rule to impose significant limits on abortion because doing so would be spun by the Democrats as conservative SCOTUS majority imposing its will on the nation. This also explains why Roberts seems to be perfectly happy to have the Second Amendment be relegated to the status of a pseudo-right. All the talk of court packing seems to be aimed as much on intimidating Roberts as it does on actually doing it.

The unfortunate thing is that Roberts seems to be viewing the credibility of SCOTUS as something to be established in each case and measured by its popularity. That isn’t the way things work. And his willingness to turn himself into a logical pretzel in search of credibility is going to end up robbing him of that which he seeks.

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