Unprecedented leaks of behind-the-scenes information at the US Supreme Court are raising questions about whether the threat of political attacks and other potential criticism played a role in the high court’s recent decision to uphold President Obama’s health-care reform law.
The most detailed leaks came in a CBS News report over the weekend, suggesting that Chief Justice John Roberts may have switched sides in the high-profile case in part to insulate the court and his own legacy as chief justice from election-year criticism should the court strike down the massive reform law.
President Obama and Senate Judiciary Committee Chairman Patrick Leahy (D) of Vermont, among others, made statements after oral arguments in the case suggesting that any decision overturning the health-care law would be the illegitimate work of conservative judicial activists on the Supreme Court.
The warning was clear: The Supreme Court and the justices themselves were about to become fair game in the president’s campaign for reelection.
Now, a week after the Supreme Court announced its opinion upholding the health-care law, Justice Roberts is being accused of having caved in to threats of political pressure.
The problem with such accusations is that they are difficult to prove – or disprove. Even worse, if the perception spreads that the chief justice is susceptible to outside pressure, the court will likely come under even more pressure and criticism in future cases – even if the perception is untrue.
Liberal columnists who favor the health-care law are praising Roberts for supposedly rising above conservative politics to give the case fair adjudication. The chief justice exemplified a kind of noble leadership, intent on keeping the court above any taint of politics, they suggest.
Some conservatives were less charitable, branding Roberts a traitor. Although Roberts essentially agreed with the court’s conservative wing that the law was unconstitutional, he used his power as chief justice wielding a crucial fifth vote to ensure that the case was decided in a way that upheld the health-care reform law.
These conservative analysts, who oppose the health-care law, accuse Roberts of deliberately shaping his decision to mitigate an election-year political backlash against the Supreme Court – and Roberts himself.
Into this mix comes an intriguing CBS News report citing inside sources claiming that Roberts initially voted to strike down the health-care reform law but later changed his mind and switched sides to uphold it.
According to the report, Roberts abandoned his conservative colleagues and joined forces with the court’s liberal wing in what the report suggests was an effort to avoid partisan criticism of the Supreme Court.
The account, by CBS News Correspondent Jan Crawford, was based on two unnamed sources “with specific knowledge of the deliberations.”
Although the account suggested that concern about outside political pressure may have influenced Roberts’s switch, his precise motives are not identified.
“It is not known why Roberts changed his view on the mandate and decided to uphold the law,” the CBS report says.
The news report sparked a new round of criticism among conservative legal analysts.
“The fact that this decision was apparently political, rather than legal, completely undermines its legitimacy as a precedent,” said Randy Barnett, a professor at Georgetown University Law Center and one of the first legal scholars to raise questions about the constitutionality of the health-care reform law.
“Its result can be reversed by the People in November,” he added in a statement, “and its weak tax power holding reversed by any future court without pause.”
The Supreme Court upheld the Patient Protection and Affordable Care Act last Thursday.
The decision surprised many conservative analysts who expected the chief justice to side with the court’s conservative wing to strike down the centerpiece of the law, the individual mandate requiring Americans to buy health insurance or pay a penalty.
How Roberts ruled
At issue in the case was whether Congress overstepped its authority under the Commerce Clause by ordering Americans to engage in commercial transactions (buying insurance), which Congress would then regulate.
Roberts and four other conservative justices concluded that the so-called individual mandate exceeded limits on congressional power. Those five votes would have been enough to invalidate the mandate and establish a clear limit on the expansion of federal power under the Commerce Clause.
That alone could have resolved the case and would have qualified as a landmark decision.
Instead, Roberts sided with the court’s four liberal justices to uphold the health-care reform law as a valid exercise of Congress’s power to raise and collect taxes. In effect, Roberts and the liberal justices concluded that the penalty required in the individual mandate was not a penalty at all, but a tax.
Even though the law was unconstitutional under the Commerce Clause, it could still stand because Congress had full authority to enact it as a tax, Roberts announced.
The chief justice also joined with the court’s liberal wing to uphold a major expansion of Medicaid, provided the administration dropped its threat to withdraw all existing Medicaid funding from states that choose to opt out of the Medicaid expansion.
The federal government must give the states a genuine choice of whether to participate in the federal expansion or not, the justices said.
Many conservatives saw a silver lining in the decision, noting that five justices – including Roberts – announced a new limit to expansive claims of power by the federal government under the Commerce Clause. In addition, for the first time ever, the Supreme Court had recognized a limit on coercive conditions Congress could place on federally funded programs administered at the state level.
At the same time, liberals celebrated the high court’s constitutional endorsement of the president’s signature legislative accomplishment, the largest expansion of the nation’s social safety net since the 1960s.
Although the decision seemed to offer something for everyone, it was not the clear victory many were anticipating.
Conservatives looked at Roberts and wondered what went wrong.
There is no evidence that politics played a role in the outcome. But with 187 pages of decisions, concurrences, and dissents issued by the court, it is clear that the chief justice split with his conservative colleagues not simply over whether to strike down the individual mandate but also whether to strike down the entire law.
This is not a small issue.
Roberts agrees with the four dissenting justices, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, that the individual mandate exceeds the limits of the Commerce Clause and also that the Medicaid expansion is unconstitutionally coercive of the states.
The key difference is Roberts apparently felt there was enough legal justification to uphold the entire law based on Congress’s broad authority to raise and collect taxes.
Until Roberts elevated it, the tax question had never emerged as a central issue.
No other judge in two years of litigation challenging the health-care reform law had reached a similar conclusion. President Obama insisted the measure was not a tax. The law itself, as written by Congress, refers 18 times to a “penalty.” And the mandate and associated penalty/tax is located in first section of the law, not the ninth section reserved for “Revenue Provisions.”
Nonetheless, Roberts and the court’s liberal wing agreed that there was enough to conclude the measure was a tax.
The written opinions released in the health-care reform case were highly unusual in that the four conservative justices issued a joint dissent and refused as a bloc to concur in any of the chief justice’s decision.
That disposition has spawned a debate over whether portions of the opinions dealing with the Commerce Clause and coercive use of the Congress’s spending power established binding legal precedents or just surplus prose.
In their dissent, the four conservatives accused Roberts of effectively rewriting the health-care law as a tax to avoid having to strike it down as unconstitutional.
“To say that the individual mandate merely imposes a tax is not to interpret the statute but to rewrite it,” the dissent said.
“The court regards its strained statutory interpretation as judicial modesty. It is not,” the dissent added. “It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect.”
Roberts concedes in his decision that his interpreting the individual mandate as a tax is not the most natural way to read the statute. But the court’s task is only to decide whether it is “fairly possible” to justify the law as a tax, he said.
“It is only because we have a duty to construe a statute to save it, if fairly possible, that [the individual mandate] can be interpreted as a tax,” Roberts said.
It is unclear whether Roberts will enforce the same significant deference to Congress in future federalism cases or will instead side with his conservative colleagues.
What is clear is that the chief justice will likely be the target of escalating criticism from one side or the other, regardless of what he does.