U.S. political junkies love having a conspiracy theory to mull over. And Supreme Court Chief Justice John Roberts has sent speculation about his motives into overdrive after spurning his conservative cohorts to uphold President Barack Obama’s health-care law.
At issue is whether Judge Roberts, a George W. Bush appointee whose nomination was opposed by Mr. Obama when he was a senator, was influenced by the potential political fall-out from his ruling and switched sides in the course of the court’s deliberations.
On Sunday, CBS News cited "sources with specific knowledge of the [court's] deliberations" to report that Judge Roberts initially joined his conservative colleagues on the court to eviscerate the health-care law, only to change his mind later.
Judge Roberts "then withstood a month-long, desperate campaign [by the conservatives] to bring him back to his original position," the CBS report said.
A move to kill Mr. Obama’s health-care law would have further fuelled the arguments of Democrats that the Roberts-led court consistently favours Republicans and the wealthy. Mr. Obama has been a fierce critic of Judge Roberts and, in April, even warned an “unelected” court against striking down a law passed by elected politicians.
“The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate,” The Wall Street Journal said in an editorial. “If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties.”
Since the court handed down its 5-4 ruling on Thursday, legal scholars have been parsing the nearly 200-page decision to unearth “clues” suggesting that Judge Roberts originally sided with the court’s conservative wing to declare the entire health-care law unconstitutional.
They cite the dissenting opinion signed by Republican-nominated judges Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy, arguing it reads more like a majority opinion that was abandoned by Judge Roberts somewhere along the line.
Indeed, Judge Roberts did vote with the four conservatives to reject the main argument advanced by the Obama administration, namely that the federal government’s power to regulate commerce gives it the authority to force Americans to buy health insurance.
But Judge Roberts turned around and voted with the court’s four Democratic-appointed justices to argue that the government could nevertheless impose a tax on Americans who refuse to comply with the requirement that they purchase health coverage.
The ruling stunned most court watchers because the Obama administration had specifically rejected the idea that the penalty imposed under the law constituted a tax, well aware of how unpopular taxes are with American voters.
Judge Roberts’s neat feat of legal acrobatics saved Mr. Obama and his law, but it has spawned an avalanche of second-guessing in legal and political circles.
The conservative quartet on the court generated some of the questioning with its thinly veiled attack on Judge Roberts, suggesting he rewrote “the statute to be what it is not.”
“We have never held – never – that a penalty imposed for violation of the law was so trivial as to be in effect a tax,” the dissenting judges wrote.
One of the leading sources of the post-decision discussion is a legal blog called – appropriately enough – the Volokh Conspiracy.
In a Saturday entry, George Mason University law professor Ilya Somin reprises the comments Mr. Obama made in 2005 when he voted against Judge Roberts’s nomination.
“When I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” Mr. Obama said then.
Prof. Somin countered: “Sure enough, John Roberts sided with ‘strong’ insurance companies…and ‘those in power’ in the ‘executive branch and the legislative branch’ against the comparatively ‘weak’: small business and the majority of ordinary voters who opposed the [law] and wanted it invalidated.”
A Newsweek/Daily Beast poll released on Friday found that 50 per cent of Americans disapproved of the court’s move to uphold the law, compared to 45 per cent who approved.
While the individual mandate (the requirement that uninsured Americans purchase insurance) remains highly unpopular, the Newsweek poll and others suggest a subtle shift in public opinion.
Opposition to the overall law has softened in recent months and the Supreme Court’s imprimatur could lead more voters to reconsider their views, especially as Democrats launch a campaign to highlight the law’s more popular provisions.
As for Judge Roberts, he is not sticking around to weather the fall-out of his decision. The court recessed for the summer on Thursday and he is headed to Malta to teach.
“Malta, as you know, is an impregnable island fortress,” Judge Roberts quipped on Friday. “It seemed like a good idea.”