CBS News’ Jan Crawford is reporting that Chief Justice John Roberts originally sided with the Supreme Court’s four conservative justices to strike down the heart of Obama’s health care reform law, often referred to as “Obamacare,” but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
CBS continues (all subsequent emphasis added):
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.
“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.
And while the Supreme Court is notoriously secretive– no law clerks or secretaries are allowed in the room when the justices discuss cases and cast their initial votes– Roberts’ drastic shift was noted in this closely-watched case.
CBS explains a possible reason for the change of heart:
[Unlike some other justices] 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.
Others maintain that Roberts just came to realize the historical impact of striking down such a law, and political pressure had nothing to do with it.
But CBS continues:
Roberts then engaged in his own lobbying effort – trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as “arm-twisting.”
Even in Roberts’ opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy’s vote. Roberts even used some of the same language that Kennedy used during oral arguments.
[…]In fact, 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.
The story also says that the conservative dissent was not originally written as a majority opinion, as some have thought, but reads differently than expected because the conservatives simply refused to acknowledge Roberts’ opinion.
The article concludes with Kennedy’s strong statement from the dissent: “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…Today’s decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it.”
National Review Online’s Avik Roy said of the revelation: “The bottom line, if Jan Crawford is right, is that conservative justices can be blackmailed by left-wing editorialists. It’s not a pretty picture.”
This post has been updated.