Let Us Have a Constitutional Moment Here, Nino...
If It Was Uncertainty About Health Care Financing That Was Holding Back the Economy…

John Roberts, Conservative Outcast--and Political and Moral Actor

We are now having a somewhat different Constitutional Moment than Nino had envisioned...

Adam Sorenson: Roberts, Conservative Outcast, and Court's Surprising Leak:

So much for weeks of chatter about how the Supreme Court is the last hermetic institution in Washington.... [C]onservative members of the court felt the need to explain publicly why the decision went against them, defend their efforts to prevent the outcome and vent a little spleen. It’s not necessarily an angry clerk.... CBS’s story claims knowledge of the thoughts of conservative Justices and seems to transmit their version of why Roberts flipped....

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....

"We tried to talk him out of it, but President Obama and the liberal New York Times were just too powerful" is not a narrative I imagine Roberts would endorse.... Roberts’ reply was that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” His vote, in theory, was for restraint of both congressional and judicial power.

That’s a lonely position, though. Conservatives are furious. Roberts’ fellow conservative jurists didn’t mention him by name in their dissent because “they no longer wished to engage in debate with him.” One Justice, according to CBS, said the right wing of the court effectively told Roberts, “You’re on your own.” They washed their hands of the ruling. Clearly, that’s something they want the world to know.

The Ginsburg concurrence mentions "The Chief Justice" 79 times in 61 pages.

The joint dissent mentions "The Chief Justice" 0 times in 65 pages.

That is remarkable.

My view is that the most likely reason for the failure to refer to Chief Justice Roberts is (a) Roberts drafted the first 3/4 of what became the "joint dissent"; (b) laziness on the part of joint dissenters, who were unwilling to do the work or have their clerks do the work of rewriting the sections; and (c) a rhetorical decision by Scalia to address the government rather than the chief justice. The result is a dissent that realizes that it is a dissent--rather than an opinion--only in its first and last sentences.

This means, I think, that by the clear and convincing evidence standard at least, the leaker to CBS--whether Thomas, Kennedy, Scalia, Alito, or one of their clerks--is telling lies...

My view of Roberts's most likely thinking is that it went like this:

  1. Congress could have written the ACA mandate as a tax--or as a mandate that went into effect not when you file your tax return uninsured but when you show up at the emergency room uninsured.
  2. Congress would have written the ACA mandate as a tax had anybody back in 2009 thought that this mandate would be upheld unless we overruled Wickard.
  3. It is time to put some limits on the power of congress.
  4. Elded, Raich, Citizens United, and Bush v. Gore mean that my reputation as a political hack is set in stone forever if I overrule this thing.
  5. The fact that the core of this thing was Mitt Romney's signature initiative until the end of 2009s mean that my reputation as a partisan hack is set in stone forever if I overrule this thing.
  6. It is time to put some limits on the ability of congress to use its checkbook to coerce the states.
  7. If I uphold the mandate under the taxing power, I can get a 7-2 majority for my "federal-state programs are like a contract" position on Medicaid expansion.
  8. The 7-2 majority for my "federal-state programs are like a contract" position on Medicaid expansion is a major victory for federalism and human liberty.
  9. People's dislike of taxes means that legislative overreach via the taxing power is not nearly as big a thing to worry about as legislative overreach via the commerce clause.
  10. Upholding the mandate as a tax and getting Breyer and Kagan to cross the aisle on Medicaid expansion is a clear win.
  11. The British House of Lords lost all its power when it got the House of Commons and the King mad enough that the King promised to create enough new peers to erase any Lorsd majority that the House of Commons disapproved of.
  12. We could and will lose all our power in an instant if ever 218 House members, 51 senators, and a president get mad enough that they react to an adverse Supreme Court decision by expanding the court and appointing new justices to override.
  13. These New Four Horsemen have all lost it--neither Alito, Kennedy, Scalia, nor Thomas understands how close, after Bush v. Gore, we are to that edge of constitutional irrelevance.