Why John Roberts Changed His Mind

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.

Yesterday’s big story came from Jan Crawford of CBS News, who reports that two separate sources within the Supreme Court confirmed to her what people have been speculating about since Thursday: Chief Justice John Roberts was initially planning to join the court’s conservatives to strike down Obamacare, but then changed his mind. But why?

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending….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….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.

Hmmm. Maybe. In any case, it sure sounds like Crawford’s sources are a couple of pissed-off conservative justices, doesn’t it? I’d tentatively view this story though that lens, anyway. Then there’s this:

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….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’s 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.

This sounds plausible to me — mainly, I admit, because it was precisely what I thought the court should do:

If they don’t want a rerun of the 1930s, which did a lot of damage to the court’s prestige, but they do want to put firmer limits on Congress’s interstate commerce power, the [justices should] find a limiting principle of their own. But find one that puts Obamacare just barely on the constitutional side of their new principle. This would avoid a firestorm of criticism about the court’s legitimacy — that they’re acting as legislators instead of judges — but it would satisfy their urge to hand down a landmark decision that puts firm limits on further expansion of congressional power. Liberals would be so relieved that Obamacare survived that they’d probably accept the new rules without too much fuss, and conservatives, though disappointed, would be thrilled at the idea that the court had finally set down clear limits on Congress’s interstate commerce power.

As it happens, that’s pretty much how it went down: Obamacare was upheld, but new limits were placed on Congress’s power. Roberts just wasn’t able to get any of the other conservatives to go along.

If I had to guess, the bait for the conservatives was the possibility of getting liberal buy-in for new restrictions on Commerce Clause power. A decision that went 7-2 or 8-1 in favor of some concrete restriction, at the price of letting Obamacare slide in on a technicality, might have seemed appealing. And it’s possible that some of the liberals were willing to go along. But if that was the pitch, apparently none of the conservatives was willing to bite. In fact, the story suggests they’re pretty bitter about the whole thing:

Roberts [] 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.”

….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 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.

Will we be hearing more about this? I hope so! Every other agency of government leaks like a sieve, and I don’t know why the Supreme Court should be any different. I want the dirt, and I want it now. Who is going to be the TMZ of Supreme Court gossipmongering?

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate