Injustice from the justices

Phew. I think this will be my last post on the Obamacare ruling. I've worked through the vast majority of my ideas. There were a lot: 

• The strangeness of Roberts not voting with the conservatives
• The appalled reaction of conservatives
• The reasoning of the ruling and the dissent

This post is about the reaction from the close colleagues of Chief Justice Roberts. 

Departure from normal standards

The Supreme Court is an insular institution. The justices don't have the electoral pressures that require most politicians to communicate with the public and explain their actions. Also, leaks of insider information from the Court are rare. So this case is a major exception, which adds another layer of oddity to this decision.


The leak was made to Jan Crawford, a CBS reporter who's scored important interviews with several justices. Her first article told about how Roberts initially agreed with the four conservative justices to strike down the health insurance mandate, but during the course of writing the opinion he found grounds to uphold it, thus siding with the liberal justices.

 Is this inside report credible? Yes.

I don't automatically credit this article as factual. However, some of the reporting is backed up by information in the Court's 193-page ruling. Ms Crawford writes:

And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own." The conservatives refused to join any aspect of his opinion, including sections with which they agreed...

This is absolutely borne out by the ruling. Roberts writes how the mandate cannot be upheld under the Commerce Clause. The four conservative justices agree, but express that opinion separately instead of in a concurrence with Roberts. 

Determining the Viewpoint of the Leak

Since the report passes at least one test of credibility, I'm inclined to believe that it's an accurate report. However, it's a report that comes from a particular viewpoint. Considering that it gives details about the interaction of the conservative justices among themselves and with Chief Justice Roberts, it evidently came from a conservative justice or sources close to conservative justices. 

The article contains speculation (whose we don't know) that Roberts was influenced by outside pressures, not only considerations of law and constitutionality:

Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it... 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.

Does this information come from John Roberts himself? I doubt it. It sounds like someone's analysis of his actions and motives, not his own self-explanation. The article is filled with observations from the viewpoint of one or more conservative justices:

At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

Note the view here is from one of the conservative justices. It's not Roberts' viewpoint of the incident, or that of a liberal justice, nor it is likely to be the report of an unbiased fly-on-the-wall. One last example:

"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this." ...Roberts then 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."

Anger of the Right(eous)

In another, shorter article, Ms. Crawford writes about the anger of the conservative justices:

If Roberts had been with the liberals from the beginning, sources tell me that would have been one thing; but switching his position - and relatively late in the process - infuriated the conservatives. ...Of course it's unclear why he switched. He may have been focused solely on the law. But that is not what some of his colleagues believe.

The picture that emerges is one of intense anger clothed in restraint. Restraint is certainly to be expected from the highest judges in the country. However, the level of anger is surprising. Why can't the conservative justices accept this as a good faith difference of opinion?

The level of their anger is indicated by their refusal to formally concur with Roberts' opinion on the limits of the Commerce Clause. He went against their view, so he received the force of their righteous anger: if you're one of us, you better stay one of us. No allowance for difference of opinion.

The next court term could be mighty interesting if these justices continue behaving this way. Let's hope they cool off during the summer, because they are stuck together in these lifetime appointments. Beyond that, I personally hope to see continued independence from Roberts. I'm rooting for anyone who'll break out of the armed-camp mentality of the politics in this country. 

 Image: chickaboomer.blogspot.com

The obscure motives of John Roberts

Conservatives can't understand why Roberts deserted them when deciding that the Obamacare mandate was constitutional. Only a few take his opinion at face value as "a fully plausible case." Here's a list of the some of the reasons conservatives suggest for Roberts' betrayal:

1. Roberts was prone to political pressure, but other justices aren't
2. The liberal media was pushing the idea that the court was political and that it was a political choice to overturn this liberal legislation, and Roberts folded under the pressure
3. The president humiliated the justices at the State of the Union address, and Roberts caved under this pressure.
4. Roberts saved the court from charges of political division and helped salvage the reputation of the court, but at the cost of deciding the issue on constitutional grounds.
5. Roberts saved the court from charge of political division so the court can be even more conservative in its next term.
6. Roberts was bribed or blackmailed, and there really should be an investigation of this most foul crime.
7. The jinxed theory - Several supposedly conservative justices have turned moderate or even liberal, but not the other way.
8. Here's an even longer list, if you aren't tired already.

Critiques of (some of) the theories

#2. The belief that he was intimidated by the liberal media is laughable. There are enough conservatives around so he wouldn't feel outnumbered. He's shown no signs before of being intimidated before, even on a big case like Citizens United. No, this speculation smacks of "blame the media" overreach. The idea that a lifetime appointee to the highest court in the country will be meek and wishy-washy, and base a ruling on gabbing bloggers, reporters, and anchors is crazy. The justice may be beholden to the president who nominated him or a particularly strong senate supporter, but to the media in our fragmented news age?  Come on.

#4. People who generally like John Roberts want to ascribe a noble motive, and the favorite choice is that  he wanted to salvage the reputation of the court by not striking down this highly political program. The supporters of this theory are at least moderate in their criticism, instead of being in the "string him up" camp. They are also realistic in acknowledging the specter of Bush v. Gore.

#6. This a black helicopters/jackboots/demonic-Democratic party conspiracy theory that will be impossible to disprove even when there's absolutely no evidence. So it must be true.

#7. The 'jinx' theory is more a superstition than a logical theory. However, it's a particular favorite of mine. It seems odd that only the good ones (conservatives) become possessed, never the bad ones being possessed by good spirits.  However, back in reality, there's a different explanation: Souter was always moderate; O'Connor was always a woman, and women will see some things differently; Kennedy reportedly has a libertarian streak; Earl Warren--I don't know.

Slippery Logic

All the theories ignore the opinion itself, which lays out the logical reasons for his choices, including precedents on which he relied. As I've said before, these positions are logical, both pro and con. It's not as though one is clearly logical and the other illogical. Instead, it's a matter of how much value you put on this argument versus that one, this outcome vs. that one.

I'm Guilty too

I offered my own theory--that Roberts wanted to salvage some of the Obamacare law, and only the liberals would then talk with him. Who knows, and would they tell us? Probably not, but I'm used to unsolved mysteries and truth that remains hidden. Speculation is OK as long as it's treated as such. I wonder in six months whether there will be any buzz at all about this issue. I hope so, because I believe the Supreme Court is too political, and I'd like to see the dynamic change even more. Oops, now I've really set myself up for disappointment... again. It's the bane of the optimist.

They forgot to look here for the reasons.

Image:columbianacountylawlibrary.com

 

 PS. I haven't exhausted my thoughts on the ACA ruling yet. I hope others share my fascination with this twist in American politics and jurisprudence.

Judicial activism (or not) in the Obamacare ruling

Most people don't want to wade through the Supreme Court ruling on Obamacare, and I don't blame them. I couldn't read the whole thing (193 pages) either. However, here is my attempt, based on what I did read, to lay out the arguments the justices found compelling.

Both arguments have very strong points. The dissent skewers the devices the majority used to maintain the legislation (starting at p.142), specifically turning the mandate/penalty into a tax, despite the fact that the legislation wasn't written as a tax.

Chief Justice Roberts, writing only for himself, points out that the Court doesn't overturn legislation lightly and that the precedent is that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality" (p. 3). He found that the power to tax was a reasonable argument. The liberal justices didn't agree with his reasoning, but agreed with the upshot, which was that the mandate could stay.

The minority doesn't actually refute the argument that Court should try to find a any to uphold Congress's laws. Instead, they hammer away at how the law created what looks and acts like a penalty, so it not should be interpreted as a tax. They also cite precedents for why the law must be judged as is rather than 'adjusted' to squeak by on the constitutionality question.

As in so many contentious issues, there isn't a single argument that blows away the rest of them. I support the argument that the law goes too far for justification under the Commerce Clause. But my support isn't based on knowledge the Commerce Clause precedents--it's more like me saying "Sounds reasonable to me."

Beyond the legal logic in the opinion, I'm fascinated that Chief Justice Roberts would square the circle rather than throw out this law. He hasn't been as respectful of other laws. This opinion could easily have gone the other way, and I don't see a strong reason why it didn't.

For all the speculation on why Roberts ruled as he did, see my next post.

Roberts' decision process

Image: wikipedia.org

Update 7/9/12. Here's an interesting critique of Roberts' mistakes. This critique inadvertently supplied me with another point in favor of Roberts' ruling: that capitation taxes (a per-head tax) are constitutional, and that this kind of tax is constitutional a "shared responsibility."

My interpretation: we all have healthcare expenses in this country, so carry insurance, get one of the limited waivers, or pay a tax. I can believe that would be constitutional.