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The Inside Story on How Roberts Changed His Supreme Court Vote on Obamacare

July 02, 2012

By Avik Roy

The Obamacare Supreme Court ruling seemed strange. Chief Justice John Roberts’ reasoning was incoherent. The conservative’s dissent read like it was originally meant to be a majority opinion. Now, we know why. According to Jan Crawford of CBS News, John Roberts switched sides in May, withstanding a "one-month campaign" from his conservative colleagues to change his mind.

"I am told by two sources with specific knowledge of the court’s deliberations that Roberts initially sided with the conservatives in this case and was prepared to strike down…the individual mandate," said Crawford on CBS’ Face the Nation. "But Roberts, I’m told by my sources, changed his views, deciding to instead join with the liberals. There was a one-month campaign to bring Roberts back into the conservative fold, led, ironically, by Anthony Kennedy."

That explains what I was hearing a few weeks ago. I reported, from third-hand sources, that the conservatives were furiously lobbying each other on the issue of severability of the individual mandate from the rest of Obamacare. It turns out that this reporting was accurate, but that Roberts then changed his mind and joined the liberals. Subsequently, the conservatives started lobbying Roberts to stay with them on the law’s unconstitutionality.

The irony is that Roberts didn’t have to rewrite the statute in order to issue a judicially minimalist opinion. He could have done what the Obama administration asked him to do: if the individual mandate is unconstitutional under the Commerce Clause, also sever the law’s guaranteed-issue and community rating provisions, and leave the rest of the law intact.

Instead, he invented out of whole cloth a new definition of taxation that contravenes long-standing precedent. He added hundreds of billions of dollars to the federal deficit, by way of his Medicaid ruling. And he forever tarnished his legacy as a Justice, and his promise to the nation that he would serve as an umpire, and "remember that it’s my job to call balls and strikes, and not to pitch or bat."

A number of my Federalist Society friends are describing Roberts’ opinion as a kind of victory for constitutional conservatives, because Roberts sided with Kennedy et al. on the limits of the Commerce Clause and the 10th Amendment. But I look at it in the opposite way. It is the Federalist Society that has failed, for the umpteenth time, to help Republican Presidents appoint strict constructionists to the Supreme Court. It’s time for conservatives to think hard about this problem, and make sure they don’t make this mistake again.

And also to ensure that Obamacare is repealed by Congress in 2013.

Original Source: http://www.forbes.com/sites/aroy/2012/07/01/the-supreme-courts-john-roberts-changed-his-obamacare-vote-in-may/

 

 
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