The mystery of why Supreme Court Chief Justice John Roberts switched positions on the constitutionality of Obamacare continues. But switch he did, in a way that looks more political than judicial. The switch still does not speak well of him.
These reflections come, it must be said, from a third-hand report. The March issue of the Atlantic will feature a review by liberal Chicago lawyer Michael O’Donnell of a forthcoming biography of the Supreme Court leader. The book, titled “The Chief: The Life and Turbulent Times of Chief Justice John Roberts,” is by CNN legal analyst Joan Biskupic. It sounds like a good one. For now, what’s most interesting in the review, and what is certain to get the most attention when the book comes out, is Biskupic’s reporting on Roberts’ role in salvaging Obamacare.
Biskupic’s biography will confirm the original, contemporary reporting of CBS’ Jan Crawford, to the effect that in conference, Roberts eventually sided with the four other justices who found Obamacare’s individual mandate unconstitutional. Then, just as Crawford had reported, he changed his mind and decided that what had once been a bit of a side argument – that the mandate was a “tax,” and thus (due to some logical somersaults) allowable after all – was indeed one he could hang his hat on, and one that could save the health law.
What’s new in the biography is not just the confirmation of Crawford’s excellent reporting, but the admission by Roberts himself that his choice amounted to him being “torn between his heart and his head.” It is not clear why Roberts, who once famously claimed he would be a neutral “umpire” on all cases, would let his “heart” govern his interpretation of the law. What is clear, both according to Crawford in 2012 and to Biskupic now, is that he wanted to reach a result that (in O’Donnell’s words) did not “interject the Court into the ongoing health-insurance crisis.”
He then, according to the accounts, tried to broker a deal among justices, to find a way to reach the result he wanted. In short, he politicked.
Granted, some of this goes on in lots of court cases. But most of that sort of “brokering” involves lesser matters, such as how to explain the exact nature of an opinion already reached. In this case, Roberts reportedly negotiated something far more central, namely the opinion itself. As the reports go, he tried hard to gain one of the court “conservatives” to join him, but, failing that, “turned to the Court’s two moderate liberals, Stephen Breyer and Elena Kagan. The threesome negotiated a compromise decision …”
Not even Biskupic (according to the review) has been able to ascertain exactly what caused the chief’s change of heart, but if his goal indeed was to maintain the court’s “legitimacy” by not “interjecting” it into a political matter, he failed miserably. Instead, his political machinations eroded the idea of high court as neutral arbiter. Rather than that ideal, Roberts was making the court a clearly political body in which reasoning is galvanized to justify desired results, rather than results only following neutral, constitutional reasoning without fear or favor.
For a judge, this is shameful behavior. As a decision, Roberts’ handiwork was indeed “strained,” as Crawford described it. Actually, “tortured” is probably a better descriptor. Its logic was convoluted and weak, at times almost indecipherable. In short, it was a horrid decision.
The rest of Biskupic’s book may paint Roberts in a good light. His Obamacare decision, though, will always be a black mark on his record.
