John Roberts switched his Obamacare vote at the last minute

[Bacon King]

http://www.salon.com/2012/06/28/did_john_roberts_switch_his_vote/singleton/

This has apparently been out there for a while, but it's the first I've seen of it. I'm especially amused by the fact that the joint minority opinion contains thinly-veiled references to Roberts' flipflop:

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[TNF]

Interesting. Let's see if Roberts again switches at the last minute on the civil rights issues at hand.

[Antonio the Sixth]

For some reason I doubt this switch was caused by a sudden constitutional epiphany...

[King]

I think Roberts is somewhat moderate, but wants to appear staunch conservative, so he only breaks this facade when Kennedy lets him down.

[Mr. Morden]

I think Roberts is somewhat moderate, but wants to appear staunch conservative, so he only breaks this facade when Kennedy lets him down.

My take is that he's actually pretty conservative, but is also really worried about the reputation of the court.  He doesn't want to be seen as the chief justice who presided over the court turning into a nakedly partisan institution, and he feared that the conservative side winning on this case would look political, even though he was sympathetic to the conservative side on the merits.

[Kaine for Senate '18]

I think Roberts is somewhat moderate, but wants to appear staunch conservative, so he only breaks this facade when Kennedy lets him down.

So, the reverse of a Moderate Hero?  Fwiw, I agree with Morden, and said from the start that Roberts could easily vote to uphold ObamaCare just because overturning the law would hurt the SCOTUS' image.

[Maxwell]

Interesting. Let's see if Roberts again switches at the last minute on the civil rights issues at hand.

Kennedy has had a strong history on gay rights, so I don't think we even need Roberts.

[Antonio the Sixth]

Interesting. Let's see if Roberts again switches at the last minute on the civil rights issues at hand.

Kennedy has had a strong history on gay rights, so I don't think we even need Roberts.

Yeah, Kennedy's going to be the swing justice once again. Based on some of his comments in the oral argument, I feel reasonably optimistic.

[Benj]

I think Roberts is somewhat moderate, but wants to appear staunch conservative, so he only breaks this facade when Kennedy lets him down.

My take is that he's actually pretty conservative, but is also really worried about the reputation of the court.  He doesn't want to be seen as the chief justice who presided over the court turning into a nakedly partisan institution, and he feared that the conservative side winning on this case would look political, even though he was sympathetic to the conservative side on the merits.

I agree to an extent. I think Roberts is very concerned with his personal legacy and with the legacy of his time as Chief Justice, much more so than Rehnquist or Burger was. I don't think it is necessarily about the institution being nakedly partisan, but more about how history will judge the decisions of the court on their merits. However, the naked partisanship accusations certainly hurt as well. In the Obamacare case, I think his biggest concern was that the appearance of a court at war with itself and with the Presidency would reflect poorly in the future on the court under his leadership. There was also a concern buried in there that the future would laugh at a holding that an individual mandate was unconstitutional.

In this, I think the oral arguments in the same-sex marriage cases made fairly clear that he is trying hard to decide them with as little political and historical fallout as possible. In particular, I think he very much wants to decide both cases in favor of the plaintiffs in order to avoid historical condemnation--for no justice does the "modern Plessy v. Ferguson" accusation sting more than for Roberts. At the same time, he wants the court's opinion in both cases to avoid the political questions involved as completely as he can. He's also not ready for a modern Brown v. Board of Education and the immediate political consequences. Unfortunately for Roberts, in those cases, unlike in the Obamacare case, he is not the sole swing justice, so he does not have the power to dictate the breadth of the majority opinion and therefore cannot limit the court's holding in favor of the plaintiffs to the narrowest, least political ground if Justice Kennedy doesn't want to do so.

I also think Roberts was rattled by the public and academic reaction to Citizen's United in a way that has changed his approach to jurisprudence to a cautious and non-confrontational one (not that he was a Scalia beforehand, but he's changed). Not many people, on either side, expected the opprobrium that came out of that case. Unlike, say, Kelo, it's likely to be remembered by the public as it involves issues of national rather than local salience. And Roberts is concerned that it not be seen as part of a trend of charged, unpopular and potentially historically condemned cases to come out of his court.

[Antonio the Sixth]

I think Roberts is somewhat moderate, but wants to appear staunch conservative, so he only breaks this facade when Kennedy lets him down.

My take is that he's actually pretty conservative, but is also really worried about the reputation of the court.  He doesn't want to be seen as the chief justice who presided over the court turning into a nakedly partisan institution, and he feared that the conservative side winning on this case would look political, even though he was sympathetic to the conservative side on the merits.

I agree to an extent. I think Roberts is very concerned with his personal legacy and with the legacy of his time as Chief Justice, much more so than Rehnquist or Burger was. I don't think it is necessarily about the institution being nakedly partisan, but more about how history will judge the decisions of the court on their merits. However, the naked partisanship accusations certainly hurt as well. In the Obamacare case, I think his biggest concern was that the appearance of a court at war with itself and with the Presidency would reflect poorly in the future on the court under his leadership. There was also a concern buried in there that the future would laugh at a holding that an individual mandate was unconstitutional.

In this, I think the oral arguments in the same-sex marriage cases made fairly clear that he is trying hard to decide them with as little political and historical fallout as possible. In particular, I think he very much wants to decide both cases in favor of the plaintiffs in order to avoid historical condemnation--for no justice does the "modern Plessy v. Ferguson" accusation sting more than for Roberts. At the same time, he wants the court's opinion in both cases to avoid the political questions involved as completely as he can. He's also not ready for a modern Brown v. Board of Education and the immediate political consequences. Unfortunately for Roberts, in those cases, unlike in the Obamacare case, he is not the sole swing justice, so he does not have the power to dictate the breadth of the majority opinion and therefore cannot limit the court's holding in favor of the plaintiffs to the narrowest, least political ground if Justice Kennedy doesn't want to do so.

I also think Roberts was rattled by the public and academic reaction to Citizen's United in a way that has changed his approach to jurisprudence to a cautious and non-confrontational one (not that he was a Scalia beforehand, but he's changed). Not many people, on either side, expected the opprobrium that came out of that case. Unlike, say, Kelo, it's likely to be remembered by the public as it involves issues of national rather than local salience. And Roberts is concerned that it not be seen as part of a trend of charged, unpopular and potentially historically condemned cases to come out of his court.

This is a very interesting insight and, if you're right, that improves my opinion of Roberts improved significantly.

However, do you really think he did not foresee the outraged reaction at Citizens United? That's really hard to see. How can you expect to get away with basically allowing corporations to spend unlimited amounts of money in campaign? Yes, I know that the rational grounds for this decision were already set in Buckley v. Valeo, but at least until then the Court had at least tried to balance "free speech" concerns with concerns about the excessive influence of money in politics. Going all the way in the money=speech direction could never, EVER be welcomed as a nonpartisan, common sense decision. If Roberts really thought that vile and horrendous decision was going to get a free pass, he was pretty naive, to say least.

[○∙◄☻¥tπ[╪AV┼cVê└]

I think Roberts is somewhat moderate, but wants to appear staunch conservative, so he only breaks this facade when Kennedy lets him down.

My take is that he's actually pretty conservative, but is also really worried about the reputation of the court.  He doesn't want to be seen as the chief justice who presided over the court turning into a nakedly partisan institution, and he feared that the conservative side winning on this case would look political, even though he was sympathetic to the conservative side on the merits.

I agree to an extent. I think Roberts is very concerned with his personal legacy and with the legacy of his time as Chief Justice, much more so than Rehnquist or Burger was. I don't think it is necessarily about the institution being nakedly partisan, but more about how history will judge the decisions of the court on their merits. However, the naked partisanship accusations certainly hurt as well. In the Obamacare case, I think his biggest concern was that the appearance of a court at war with itself and with the Presidency would reflect poorly in the future on the court under his leadership. There was also a concern buried in there that the future would laugh at a holding that an individual mandate was unconstitutional.

In this, I think the oral arguments in the same-sex marriage cases made fairly clear that he is trying hard to decide them with as little political and historical fallout as possible. In particular, I think he very much wants to decide both cases in favor of the plaintiffs in order to avoid historical condemnation--for no justice does the "modern Plessy v. Ferguson" accusation sting more than for Roberts. At the same time, he wants the court's opinion in both cases to avoid the political questions involved as completely as he can. He's also not ready for a modern Brown v. Board of Education and the immediate political consequences. Unfortunately for Roberts, in those cases, unlike in the Obamacare case, he is not the sole swing justice, so he does not have the power to dictate the breadth of the majority opinion and therefore cannot limit the court's holding in favor of the plaintiffs to the narrowest, least political ground if Justice Kennedy doesn't want to do so.

I also think Roberts was rattled by the public and academic reaction to Citizen's United in a way that has changed his approach to jurisprudence to a cautious and non-confrontational one (not that he was a Scalia beforehand, but he's changed). Not many people, on either side, expected the opprobrium that came out of that case. Unlike, say, Kelo, it's likely to be remembered by the public as it involves issues of national rather than local salience. And Roberts is concerned that it not be seen as part of a trend of charged, unpopular and potentially historically condemned cases to come out of his court.

This is a very interesting insight and, if you're right, that improves my opinion of Roberts improved significantly.

However, do you really think he did not foresee the outraged reaction at Citizens United? That's really hard to see. How can you expect to get away with basically allowing corporations to spend unlimited amounts of money in campaign? Yes, I know that the rational grounds for this decision were already set in Buckley v. Valeo, but at least until then the Court had at least tried to balance "free speech" concerns with concerns about the excessive influence of money in politics. Going all the way in the money=speech direction could never, EVER be welcomed as a nonpartisan, common sense decision. If Roberts really thought that vile and horrendous decision was going to get a free pass, he was pretty naive, to say least.

Exactly. Americans don't generally pay much attention to court cases, but 80% said they opposed Citizen's United, and 65% said they strongly opposed Citizen's United. It's pretty clear that the court made the wrong decision there. They even threw out that 100 year Montana law to piss off that 1 person who actual cares about state's rights rather than just pretending to.

[Marokai Backbeat]

Citizens United is actually one of the biggest reasons I'm so repulsed by this suddenly uber cautious attitude coming from the Court on these cases, mostly on the Prop 8 case. Yes, as if the Court genuinely cares about not making far-reaching rulings that have a great impact on society and decades upon decades of statute after that case.

Not only that, but Citizens United (unaccountable money in politics doesn't lead to corruption, don't be silly! there's no proof of that!), Roberts' comments about "divvying up by race" (come on guys, the South has changed a lot, racism doesn't exist anymore!), and his hilarious implication that gays are not actually a weak and underprivileged group (because, hey, we have good attorneys now! and of course the House of Representatives in 1996 wasn't passing DOMA based on moral disapproval, except the House reports that say they were) make me think he's either one of the most naive people on the planet, or one of the most disingenuous people on the planet.

[Queen Mum Inks.LWC]

I read a property case where you could tell a judge flipped at the last minute.  The majority read like a dissent, and the dissent read like a majority - with detailed facts and everything.  Apparently they were just too lazy to change it, but it was really bizzare.

[politicallefty]

Citizens United is actually one of the biggest reasons I'm so repulsed by this suddenly uber cautious attitude coming from the Court on these cases, mostly on the Prop 8 case. Yes, as if the Court genuinely cares about not making far-reaching rulings that have a great impact on society and decades upon decades of statute after that case.

I think the most troubling aspect of Citizens United was how the Court turned what would have been a rather limited opinion into a broad constitutional one. The Supreme Court was originally going to decide the case on narrow grounds. However, the majority forced it into a re-argument on the broader constitutional issue. As Justice Stevens mentioned in his dissent, Citizens United had already dropped its facial challenge of that particular section of the BCRA. The Court took it upon itself to issue a much broader decision than necessary. I would agree with you that the Chief Justice really is a hypocrite if he denies a broad equal protection argument on gay (marriage) rights in light of his actions in Citizens United.

[Marokai Backbeat]

Totally; this moderate hero act from the Court all of the sudden is completely transparent because we know that they are willing to make cases into very broad results whenever it suits their fancy. The suddenly super conservative approach to opinion-making from Kennedy in these cases is so arbitrary as to actually be insulting.

[Antonio the Sixth]

Yeah, I really don't get how Kennedy alternates from being a reasonable moderate voice in certain cases while joining the most hackish judges in issuing devastating rulings. I'm pretty sure there's a lot of backroom dealing and talks that have little to do with judicial issues going on inside the SCOTUS.

[Benj]

However, do you really think he did not foresee the outraged reaction at Citizens United? That's really hard to see. How can you expect to get away with basically allowing corporations to spend unlimited amounts of money in campaign? Yes, I know that the rational grounds for this decision were already set in Buckley v. Valeo, but at least until then the Court had at least tried to balance "free speech" concerns with concerns about the excessive influence of money in politics. Going all the way in the money=speech direction could never, EVER be welcomed as a nonpartisan, common sense decision. If Roberts really thought that vile and horrendous decision was going to get a free pass, he was pretty naive, to say least.

I do, very much so. You're looking at this ex post and as someone who was interested enough in politics to be paying attention to the case beforehand. At the time, no one who wasn't involved in politics even knew the case was going on. Among those who did, the assumption was that even a sweeping opinion would continue to be mostly ignored in the public sphere. This wasn't at all unique to Roberts or other justices (liberal or conservative)--it was a belief held by most legal practitioners in the area of campaign finance, who, probably rightly, think their domain is too arcane to attract much public attention.

But the justices also kind of live in a world of their own, like academics. While they certainly impact the real world more than academics, they're often not conscience of the fact that the public may react to what they say. This varies from justice to justice, but I would say only Scalia, Sotomayor and Roberts (and maybe Kagan) have some sense of how the public reacts to what the court does. (Ginsburg, Breyer and Kennedy are particularly unworldly--I've met each of them, and Sotomayor, in person, and only Sotomayor had any social skills or awareness of the world at all; she is very gregarious.) And Roberts did not, I don't think, have that sense until after Citizens United.

[Antonio the Sixth]

You have met four SCOTUS justices? Wow.

[Benj]

You have met four SCOTUS justices? Wow.

They each spoke at my law school (NYU) or (for Sotomayor), judged an NYU moot court competition. Met is pretty loose; I shook their hands and said a few words.

[Antonio the Sixth]

You have met four SCOTUS justices? Wow.

They each spoke at my law school (NYU) or (for Sotomayor), judged an NYU moot court competition. Met is pretty loose; I shook their hands and said a few words.

Well, wow nonetheless... Is NYU a very prestigious university?

[Benj]

You have met four SCOTUS justices? Wow.

They each spoke at my law school (NYU) or (for Sotomayor), judged an NYU moot court competition. Met is pretty loose; I shook their hands and said a few words.

Well, wow nonetheless... Is NYU a very prestigious university?

The law school is. One of the commonly recognized groupings of US law schools is the "top 6" (you'll hear top 3, top 6, top 10 and top 14). NYU is one of the top 6, along with Yale, Harvard, Stanford (the top 3), Columbia and the University of Chicago.

Outside of the law school, NYU's definitely not as prestigious as those other schools, though. The business school is also well-regarded, but the school overall is definitely not near the top for universities, though it's definitely a good school.

[Antonio the Sixth]

You have met four SCOTUS justices? Wow.

They each spoke at my law school (NYU) or (for Sotomayor), judged an NYU moot court competition. Met is pretty loose; I shook their hands and said a few words.

Well, wow nonetheless... Is NYU a very prestigious university?

The law school is. One of the commonly recognized groupings of US law schools is the "top 6" (you'll hear top 3, top 6, top 10 and top 14). NYU is one of the top 6, along with Yale, Harvard, Stanford (the top 3), Columbia and the University of Chicago.

Well, kudos for attending it!

[Benj]

You have met four SCOTUS justices? Wow.

They each spoke at my law school (NYU) or (for Sotomayor), judged an NYU moot court competition. Met is pretty loose; I shook their hands and said a few words.

Well, wow nonetheless... Is NYU a very prestigious university?

The law school is. One of the commonly recognized groupings of US law schools is the "top 6" (you'll hear top 3, top 6, top 10 and top 14). NYU is one of the top 6, along with Yale, Harvard, Stanford (the top 3), Columbia and the University of Chicago.

Well, kudos for attending it!

Thanks

[Southern Senator North Carolina Yankee]

Totally; this moderate hero act from the Court all of the sudden is completely transparent because we know that they are willing to make cases into very broad results whenever it suits their fancy. The suddenly super conservative approach to opinion-making from Kennedy in these cases is so arbitrary as to actually be insulting.

Yeah, I really don't get how Kennedy alternates from being a reasonable moderate voice in certain cases while joining the most hackish judges in issuing devastating rulings. I'm pretty sure there's a lot of backroom dealing and talks that have little to do with judicial issues going on inside the SCOTUS.

Maybe it is the fact that you judge the rulings based on a political context, that leads you to be so disappointed by what you consider to be an inconsistency in the decision making.

I think Roberts is somewhat moderate, but wants to appear staunch conservative, so he only breaks this facade when Kennedy lets him down.

My take is that he's actually pretty conservative, but is also really worried about the reputation of the court.  He doesn't want to be seen as the chief justice who presided over the court turning into a nakedly partisan institution, and he feared that the conservative side winning on this case would look political, even though he was sympathetic to the conservative side on the merits.

I agree to an extent. I think Roberts is very concerned with his personal legacy and with the legacy of his time as Chief Justice, much more so than Rehnquist or Burger was. I don't think it is necessarily about the institution being nakedly partisan, but more about how history will judge the decisions of the court on their merits. However, the naked partisanship accusations certainly hurt as well. In the Obamacare case, I think his biggest concern was that the appearance of a court at war with itself and with the Presidency would reflect poorly in the future on the court under his leadership. There was also a concern buried in there that the future would laugh at a holding that an individual mandate was unconstitutional.

In this, I think the oral arguments in the same-sex marriage cases made fairly clear that he is trying hard to decide them with as little political and historical fallout as possible. In particular, I think he very much wants to decide both cases in favor of the plaintiffs in order to avoid historical condemnation--for no justice does the "modern Plessy v. Ferguson" accusation sting more than for Roberts. At the same time, he wants the court's opinion in both cases to avoid the political questions involved as completely as he can. He's also not ready for a modern Brown v. Board of Education and the immediate political consequences. Unfortunately for Roberts, in those cases, unlike in the Obamacare case, he is not the sole swing justice, so he does not have the power to dictate the breadth of the majority opinion and therefore cannot limit the court's holding in favor of the plaintiffs to the narrowest, least political ground if Justice Kennedy doesn't want to do so.

I also think Roberts was rattled by the public and academic reaction to Citizen's United in a way that has changed his approach to jurisprudence to a cautious and non-confrontational one (not that he was a Scalia beforehand, but he's changed). Not many people, on either side, expected the opprobrium that came out of that case. Unlike, say, Kelo, it's likely to be remembered by the public as it involves issues of national rather than local salience. And Roberts is concerned that it not be seen as part of a trend of charged, unpopular and potentially historically condemned cases to come out of his court.

This is a very interesting insight and, if you're right, that improves my opinion of Roberts improved significantly.

However, do you really think he did not foresee the outraged reaction at Citizens United? That's really hard to see. How can you expect to get away with basically allowing corporations to spend unlimited amounts of money in campaign? Yes, I know that the rational grounds for this decision were already set in Buckley v. Valeo, but at least until then the Court had at least tried to balance "free speech" concerns with concerns about the excessive influence of money in politics. Going all the way in the money=speech direction could never, EVER be welcomed as a nonpartisan, common sense decision. If Roberts really thought that vile and horrendous decision was going to get a free pass, he was pretty naive, to say least.

Exactly. Americans don't generally pay much attention to court cases, but 80% said they opposed Citizen's United, and 65% said they strongly opposed Citizen's United. It's pretty clear that the court made the wrong decision there. They even threw out that 100 year Montana law to piss off that 1 person who actual cares about state's rights rather than just pretending to.

That 80% of the people disagree with a ruling, is not a good justification as to why a ruling is bad. The Court is suppose to ignore public opinion by design, hence why the judges are appointed for life, so that they can interpret the law as independently from political influence as possible. Justice based on whatever the majority thinks is justice, is a scary proposition.

[🐒Gods of Prosperity🔱🐲💸]

Citizens United is actually one of the biggest reasons I'm so repulsed by this suddenly uber cautious attitude coming from the Court on these cases, mostly on the Prop 8 case. Yes, as if the Court genuinely cares about not making far-reaching rulings that have a great impact on society and decades upon decades of statute after that case.

I think the most troubling aspect of Citizens United was how the Court turned what would have been a rather limited opinion into a broad constitutional one. The Supreme Court was originally going to decide the case on narrow grounds. However, the majority forced it into a re-argument on the broader constitutional issue. As Justice Stevens mentioned in his dissent, Citizens United had already dropped its facial challenge of that particular section of the BCRA. The Court took it upon itself to issue a much broader decision than necessary. I would agree with you that the Chief Justice really is a hypocrite if he denies a broad equal protection argument on gay (marriage) rights in light of his actions in Citizens United.

Those issues have nothing to do with each other. Would he also be a hypocrite if he supported a broad equal protection argument but a narrow reading on political speech?