My suspicion is not that Roberts went over on his own, after some long dark tea-time of the soul, but that it was the result of horse-trading of the kind the Court never discusses. The fact that the four non-activist Justices (well, except Ginsburg) signed onto a cobbled-up bit of inconsistent illogic instead of proceeding with the obvious “Of fucking *course *it’s constitutional; just look at every related ruling we ever made in the 20th century”, suggests they offered to accept Roberts’ version as the price of getting his vote.
Note that this decision is pretty activist, too - it effectively reverses Wickard and undermines Lochner, along with other law that had heretofore been settled.
I just don’t buy that. My business provides health insurance to our employees, and it’s from one of the major insurance companies. I’ve gotten no less than 8-10 letters from my insurance company, complete with full color graphs and inserts explaining how the PPACA is the scourge of mankind and will bankrupt all small and medium sized businesses. If the insurance companies somehow secretly supported Obamacare, I would expect them to put their money there. Instead, at least from what I have seen, they have put a lot of money out there trying to scarmonger people into opposing Obamacare. (Note I’m not really an Obamacare supporter, but the “facts” my carrier was sending me about how disastrous Obamacare would be for my business were easily demonstrated as being false by me spending about 20 minutes on the internet and running some numbers through an Excel spreadsheet.)
AFAIK the reality is that health groups like Kaiser are supporters of the reform, others ambivalent and a good chunk in opposition, One big clue on who was more likely to be in opposition are outfits that indeed were not doing a good job of controlling their own costs.
IIRC groups like Kaiser uses just about 10% in administrative costs, from there it follows that groups located in Texas, for example, would be most likely to fight against reform, it almost goes without saying, but I do think those outfits are very unethical.
Overall though I still think that people in power like Judge Roberts do read the writing in the wall, even for the health groups that are affected he has thrown to all insurers a life saver.
*Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, 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.
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. *
Who knows how true any of this is, though. It’s my understanding that the behind-closed-doors operations of the USSC aren’t actually revealed to the public until years after the fact when a former clerk lets slip some information about a specific case or something. A leak like this - so soon after the decision came down - seems unlikely to be true.
Sorry, I wasn’t referring to the legal aspect but rather the fact of his - and it appears to have been his swing decision - that history may remember. Arguably, this decision may form the foundation for something greater and, ultimately, hugely valued. But I concede it might not look that way for a few decades yet.
I’ve gotten the impression that the right wing wanted to strike down the whole thing, and Roberts saw that as overreach. He probably really thinks that something which is effectively a tax penalty is permissible as such, and the other righties are just wrong. And their insistence on blowing up the whole thing probably helped push him in that direction.
The plot seems to be thickening on this one regarding a possible leak in the Supreme Court, the right wing media and Robert’s vote.
“To be clear, at this point only two facts are confirmed: 1) According to Crawford, Roberts flipped his vote midstream; and 2) someone within the Court must have leaked her this information. It is perfectly appropriate for Justice Kennedy, or any other justice, for that matter, to internally lobby Roberts to try to obtain his vote in an important case. If a member of the Court has turned to conservative columnists like Will or reporters like Crawford in order to pressure and then embarrass Roberts, however, that would be a significant and unusual escalation from the justices’ regular tactics.”
That **Iggy **is the same link that 2ManyTacos used and the TMP article also does refer to it.
I actually do think this is important in the sense that what is happening is that Judge Roberts is finding first hand what does it mean to be at the other end of the current “we will bury you” rude style of the Tea Partiers that have almost driven out all moderate voices among conservatives.
Time will tell, but this could be historical in the sense that what the extreme conservatives are doing now to Roberts in the right wing media and inside the justice chambers (I do not think leaks like that are done unless some people are really pissed) could lead him to be more in tune to the court members that lean left in future discussions of cases.
Interesting as the Supreme Court hasn’t tended to leak information to reporters (as opposed to authors of books) in the past. Business reporter [Felix Salmon](http://blogs.reuters.com/felix-salmon/2012/07/02/when-the-supreme-court- leaks/) notes: As Crawford says, “the justices are notoriously close-lipped, and their law clerks must agree to keep matters completely confidential”. And yet, we’re now seeing these coordinated and perfectly-timed leaks from within the Court, detailing information known only to the justices themselves. …Lawyers… tend to be good at keeping secrets. On the other hand, partisan politicians are not. And it seems very much as though the more partisan Republicans within the Supreme Court have in this case behaved more like politicians than like jurists. Crawford: 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. If that is the case -and the sourcing appears to be impeccable- the conservative wing is certainly not displaying judicial temperament. It is said that Thomas avoids reading the New York Times because he believes it to be too liberal. Epistemic closure?
I agree that the tone of the opinions seems to imply a late switch. When I heard that the law was upheld 5-4, I was looking forward to reading my Scalia dissenting rant later than evening. Where was it? Perhaps not enough time to write it due to the late switch?
And Thomas. He wrote his two paragraph thoughts about how the Commerce Clause should be returned to pre-Gibbons days, but no similar pot shots at how now the Feds can tax breathing.
And shouldn’t the four-conservative opinion have been entitled “concurring in part, dissenting in part, and dissenting in the judgment” instead of simply “dissenting”? They did side with Roberts on the Commerce Clause argument but did not mention his opinion at all. Further, the whole dissent had an authoritative tone like it was setting the law instead of arguing against a majority opinion. Perhaps because it WAS originally the majority opinion.
They didn’t concur in part, though. They reached the same result on the Commerce Clause issue but specifically chose not to join in that section of the majority opinion, so presumably they believe their holding on the CC issue is not the same as the majority’s.