Roberts Switched Views to Uphold Health Care Law

Related:  More nuanced view of Roberts after health care law

COMPLETE WBEN COVERAGE: Health Care Ruling Upholds Mandate

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.

Some informed observers outside the Court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the President. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law.
 

There was no doctrinal background for the Court to fall back on - nothing in prior Supreme Court cases - to say the individual mandate crossed a constitutional line.

The case raised entirely new issues of power. Never before had Congress tried to force Americans to buy a private product; as a result, never before had the Court ruled Congress lacked that power. It was completely uncharted waters.

To strike down the mandate as exceeding the Commerce Clause, the Court would have to craft a new theory, which could have opened it up to criticism that it reached out to declare the President' health care law unconstitutional.

Roberts was willing to draw that line, but in a way that decided future cases, and not the massive health care case.

Moreover, there are passages in Roberts' opinion that are consistent with his views that unelected judges have assumed too much power over American life, and that courts generally should take a back seat to elected officials, who are closer to the people and can be voted out of office if the people don't like what they're doing.

As Roberts explained in his opinion:

"The framers created a federal government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people."

Regardless of his thinking, it was clear to the conservatives that Roberts wanted the Court out of the red-hot dispute.

Roberts had begun to focus on a different argument to uphold the law and the mandate's penalty by defining it as a tax. That strained argument had received almost no attention in the lower courts, which had uniformly rejected it. It was seen as a long-shot by the law's supporters.

Kennedy was the most forceful and engaged of all the conservatives in trying to persuade Roberts to stand firm to strike down the mandate. Two sources confirm that he didn't give up until the very end.

But Roberts didn't focus entirely on Kennedy, the sources said. He tried to persuade the conservatives to join at least the parts of his opinion with which they agreed, such as his Commerce Clause analysis.

"People, for good reasons of their own, often fail to do things that would be good for them or good for society. Those failures - joined with the similar failures of others - can readily have a substantial effect on interstate commerce," Roberts wrote in his opinion. "Under the government's logic, that authorizes Congress to use its commerce power to compel citizens to act as the government would have them act.

"That is not the country the framers of our Constitution envision," Roberts wrote.

But despite Roberts' strong language on the Commerce Clause, the conservatives would have none of it, the two sources said, even though there was no significant difference in their reasoning on that issue.

Indeed, since the four conservatives agreed the mandate went beyond the commerce power, the Court now has five Justices who would constrain what Congress can do going forward - imposing significant limits on federal power.

The majority decisions were due on June 1, and the dissenters set about writing a response, due on June 15. The sources say they divided up parts of the opinion, with Kennedy and Scalia doing the bulk of the writing.

The two sources say suggestions that parts of the dissent were originally Roberts' actual majority decision for the Court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

The language in the dissent was sweeping, arguing the Court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia - and then, there is Justice Kennedy.

"The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril," the dissent said. "Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."