Supreme Switch

"I think that when statesmen foresake their own private conscience for the sake of their public duties, they lead their country by a short route to chaos."
--Sir Thomas More (A Man for All Seasons)

Following last Thursday's ruling, I read several theories positing that Chief Justice Roberts slanted his position on the Affordable Care Act (ACA) case to quell accusations about 'court bias'--particularly among left-leaning intellectuals in the media and elsewhere.

Then CBS's Jan Crawford broke this story yesterday, citing sources close to the deliberations that Roberts changed his position and allied with the four Liberals to salvage the centerpiece of the ACA known as the 'individual mandate.' The story does not directly claim that boosting the image of the court was Roberts' intent although innuendos were made.

The Crawford piece reports that, in the full Court conference that followed the oral arguments in March, Roberts sided with what ultimately became the four dissenting justices, who were of the opinion that the ACA should be struck down in its entirety. Being chief justice, Roberts elected to write the historic opinion himself.

Crawford's article observes that by May, sources of 'external pressure' were building in the form of countless new articles and editorials warning of the damage to the Court, and to Roberts' reputation, if the individual mandate was struck down. While some justices 'turn off' the media when cases are pending to avoid potential for influence, Crawford reports that Roberts stays plugged in, and is sensitive to how the public views the Court.

It was during this period that Crawford's inside sources said the Roberts became "wobbly" on his position, and soon began to pursue the tax argument. Roberts even tried to pursuade the dissenters, particularly Justice Kennedy, on the tax argument's merits, but they would have none of it. On the contrary, it was Kennedy, who by his voting record and opinions may in fact be the most libertarian member of the Court, who dogged Roberts to return to his original position. Kennedy also had a heavy hand in writing the dissent.

The fact that the four dissenters wrote a joint opinion that does not mention Roberts, even in the section where they sided on the mandate's unconstitutionality w.r.t. the Commerce Clause argument, was no accident. Rather, it was a signal that the four justices were upset with Roberts' switch and his logic, and no longer wished to engage in debate with him.

Crawford is careful to note that it is not known why Roberts switched his view. Perhaps he truly felt that his arguments were consistent with the Constitution he swore to uphold.

However, and this is ME writing rather than Crawford, the tortured logic of his opinion w.r.t. the tax argument (see Roberts: 31-44) suggests otherwise. When I read jumbled thought processes that include arguments that even a junior high schooler might refute, I suspect that the writer is either unclear in his/her position, or stuggling mightily in an unnatural way to make a viewpoint 'work.'

From there, postulating that CJR had ulterior motives, such as preserving the integrity of institution that he heads, that were clouding his judgment, is easy to do.

This is speculation, of course. Only the Creator knows what motivated Roberts to act as he did. However, if he did indeed choose to act in a manner that favored the Court's institutional standing over individual liberty, then this is a classic case of judicial interest impairing freedom.