I know you may feel it’s been discussed to death already, but can I just drag us back one more time to the Supreme Court decision upholding the Affordable Care Act?
In the days since the ruling, it’s quickly become conventional wisdom that Chief Justice John Roberts “switched” his vote to rescue Obamacare, even though his rationale for doing so — that the mandate to buy health insurance was constitutional if considered a tax on those who didn’t comply — was stated by Roberts during oral arguments in March, and was reported at the time.
This fact is generally glossed over, though, amid the stream of accusations from conservatives that Chief Justice Roberts buckled under pressure from liberals to reverse his intended vote. What liberals, you ask? Well, this is the fun part. I surveyed the literature on this subject, such as it is, and the complaints consistently cite only two examples: a speech in the Senate by Patrick Leahy of Vermont in mid-May, and an article in the New Republic by Jeffrey Rosen two weeks earlier.
Yes, ladies and gentlemen, we really rolled out the big guns on this one.
So, given that this is hardly the kind of withering assault that the right-wingers are painting it as, what’s really going on? If you guessed that the general rule about conservative projection — that they invariably accuse the left of exactly what they’re doing themselves — applies here, you’re probably right. The much-hyped liberal “pressure” cited above was easily outshouted by the conservative echo chamber complaining about it (in the National Review, Fox News, the Wall Street Journal, multiple columnists on the Washington Post op-ed pages, and so on).
Moreover, you might notice that all of this whining emerged at the same time, in the week around Memorial Day. It’s quite plausible that, as Linda Greenhouse of the New York Times suggests, key conservatives (apparently including Ramesh Ponnuru of the National Review) were tipped off that the ACA decision wasn’t going their way after all… and so they decided to fire up the mighty Wurlitzer in a last-ditch effort to pressure Roberts themselves.
But apparently, that’s nothing compared to what was going on inside the Court itself. The CBS News report by Jan Crawford last Sunday contains a detailed, if somewhat gossipy, account of intense peer pressure being applied to Roberts by the four right-wing justices who ultimately dissented from the chief justice’s opinion, culminating in this act of petulance:
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.
No word as to whether they also stamped their feet and threatened to hold their breath until they turned blue. But it’s not hard to figure that part of their pressure campaign was leaking to GOP-friendly media that Obamacare might survive — and, in classic right-wing fashion, attempting to accuse their opponents of improperly influencing the vote.



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Swopa!
Rob Rogers speaks for me on this one.
Hey, EDP. Howzit?
Hotter than Hell. (I know–I checked the weather report for Hell, MI earlier, and we surely were hotter.)
As far as the ACA decision goes, I think it’s pretty clear that Roberts wrote much of the dissent. The opening, especially, reads like a majority opinion rather than a dissenting opinion.
Ginsburg’s concurring opinion reads like a dissent rather than a concurring opinion. So, yeah, I think Roberts switched his vote. I won’t ever know why he did it, though. That information might come out in his memoirs, but not before.
I also tend to believe that Roberts had his clerks prepping for this for a couple of weeks. The so-called majority opinion is too well-written and closely reasoned for it to have been a last minute job.
It’s pretty miserable here in Cincinnati, too. We had 103 on the bulb and 110 or something on the heat index. The dew point at 6 was 67.
Yeah, sounds a lot like us. About the only saving grace has been the relatively low humidity here. Unfortunately, that’s supposed to come back up tomorrow for the projected last day of the heat wave.
BargainCountertenor@4: I know there was a Salon piece stating an inside source made that claim, but I don’t buy it.
Among other things, the dissent spends more than 10 pages heaping scorn on the notion that the individual mandate could be considered a tax — the central idea that Roberts supported in his deciding opinion.
I think it’s more plausible that the dissent was written like a majority opinion because the dissenters were pressuring Roberts up until the last moment to join them, then adapt their opinion to make it his own.
I guess that’s plausible, but it doesn’t explain the vitriol in Ginsburg’s assenting opinion.
The projection rule for conservatives is very reliable. I agree with your analysis.
I don’t have an explanation for that, either, but she refers to Roberts’ opinion almost continuously (on at least 31 of the 61 pages of her opinion).
In contrast, the dissent only mentions Roberts’ opinion on 2 pages (out of 65) — more specifically, two paragraphs on one page, and three paragraphs on another. Because these paragraphs don’t contain any case citations and aren’t woven into the body of the dissent’s arguments, it’s easy to imagine that they were shoehorned in at the last moment… up to then, apparently, the dissenters clung to a fantasy that the Roberts opinion would not in fact be part of the decision.
Ain’t it ironic that DC is facing their all-time hottest day in July, tomorrow…? Too bad all the Critters have fled the premises already…!
The deciding opinion was a convenient dodge. In the wake of Citizens United and other decisions, I think Roberts realized that his court has become unacceptably partisan-political in the opinion of most Americans. This may be a good sign for future rulings, in that he’s not immune to public opinion (not necessarily specific to the case, but to the court itself) and may be willing to defer to Congress and/or the Executive rather than to reverse legislation that took such an effort to pass (however flawed an attempt it may be to fix a terribly burdensome and ineffectual system). I would venture a guess Roberts will not try to overturn precedent if/when Roe v. Wade comes up for a challenge again. Nevertheless, one of the few reasons that I will vote for Obama — while holding my nose — is the likelihood of one or more Justices having to be replaced in the near future, most likely liberal one(s).
Indeed. “Switching” his vote or buckling “under pressure from liberals” is just part of the soap opera that is the TV news. Justice Roberts is one of the most pro-corporate justices what can be got. He is a Fascist in the sense that Fascism is Corporatism. Who in their right mind would ever imagine that Roberts would side with the collective public good of the citizenry over corporate power and profit much less with what passes for “liberal” in the US?
If you haven’t by now, read Roberts’ opinion. Notice his language and framing. Notice the enforcement. Roberts is one of the dangerous fucks who helps make it “legal” for the owning class to walk on a road of bones.
http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf
Wow — so they were so busy having their little wobbly that they didn’t care that by not signing off on his Commerce Clause and N&P musings, they reduced those musings to the level of mere dicta — or as Ginsburg put it in her opinion, “not outcome determinative”?
So much for the idea of brilliant legal conservative minds.
I agree that Roberts is totally pro-corporate. He also is evidently much more intelligent than the other conservatives on the Court, who are unable to follow his reasoning and strategies.
When are we going to toss aside this idiocy about Roberts and his juggling of terminology and realize that he and the four “liberals” voted to uphold the mandate idea which originated at the HERITAGE FOUNDATION!
The other conservatives would have been forced to uphold it if the four “liberals” hadn’t been obliging enough to give them a pass on it.
Good grief. This is insanity.
I suspect you are right about Roberts’ intelligence. And the other justices are more traditionally conservative while Roberts is more “progressive” about his conservatism, which is to say Neoconservative. His Fascist ideology combined with his intelligence make him a dangerous man for anyone other than those with serious power and money. How anyone acquainted with his ideology and courtroom decisions can imagine that his stamp of approval means anything other than corporate benefit at public cost is a mystery. Having him side with ACA should tell people all they need to know about what ACA is really about.
Jan Crawford sure has changed since her days of providing Supreme Court commentary for the Lehrer New Hour (as Jan Crawford Greenburg).
X2, although I’d say Roberts is more strategic in his conservatism.
But it’s not hard to figure that part of their pressure campaign was leaking to GOP-friendly media that Obamacare might survive.
that does not seem to be the case at all. If it was the case that wingnut media knew in advance that roberts would vote to uphold the ACA, why did the wingnuts across the board make such fools of themselves with their initial headlines that it was struck down?
Active dissent on everything? Isn’t that the way of the new bat shit crazy conservatism we have now.
Meanwhile – if you are an Obamabot or a partisan Dem, you’re still claiming the decision a “victory” even though the “Affordable Care Act” has nothing to do with making care affordable…
meh…
and now you get to praise John Roberts, huh?!
oh, joy…
And as for Ginsburg’s concurring opinion, there isn’t a shred of real liberalism in it. She claims that the health insurance industry would go broke without the individual mandate, and never questions the Constitutional basis of forcing individuals to buy the products of a private company under penalty of law (with the penalty labeled a tax).
We lost big time. Not just this ruling but the whole system.
Our vote counts for nothing. But they still want us to play the game that they represent us. So, let’s play.
Start making demands people. Big ones.
No heath care for us, no health care for you.
No retirement for us, no retirement for you.
No living wage for us, no living wage for you.
it’s clear without doubt the rulers don’t represent the ruled on either side.
So join together Left, Right and Center to win this game against the elites.
It’s been widely reported that Scalia wrote the conservative dissent.
He is indeed a Fascist/Corporatist. I’m starting to dislike the term Corporatist though, because it linguistically defuses the actual meaning. I think we have to start calling them neo-fascists or crypto-fascists, it’s closer to what they really are.
Just a small note – is there a reason that you’re using an old SC picture? The pic has John Paul Stevens (seated at Roberts’ right) but no Elena Kagan.
Um… laziness? :) I had used the same picture in a previous post (a couple of years ago) that I stumbled across as I was writing this, and it didn’t occur to me to make sure there hadn’t been any changes in the SC lineup since then.
Thanks for the sharp eye!
Picture updated in response to being busted by JTIDAHO. :)
Fascist is certainly more emotionally loaded and viscerally powerful a word. Corporatist is more descriptive, more explanatory if one does knot now the meaning of Fascist. I prefer Fascist myself–the US flag lapel pin is the new armband.