Millions of people across the nation are wondering
right now, why did Chief Justice John Roberts join with the Supreme Court’s
four liberal justices in upholding Obamacare, including the individual mandate?
Well, Roberts, a Republican-appointed justice, tipped his hand during oral arguments
in March. But nearly no one noticed. Of all the pundits and all the legal
experts, kudos go to Brian Beutler at Talking Points Memo. Beutler scooped everyone
when he focused intently on a court exchange when Roberts questioned whether the
real issue is if the fee associated with the mandate is actually a tax.
Beutler’s interpretation was largely ignored by the
mainstream media, though it was posted here (a shamless plug for myself).
Here’s what Beutler wrote on March
"In a little-noticed exchange
Monday, conservative Supreme Court Chief Justice John Roberts may have tipped
his hand that he’s entertaining the possibility that the health care law’s
individual mandate can be upheld on a constitutional basis that’s different
from the one supporters and opponents have made central to their arguments.
“For over a year now, observers and
experts have assumed that the court’s final decision will hinge on the extent
of Congress’ power to regulate interstate commerce. But the justices could also
upend that conventional wisdom and, in a worrying sign for the plaintiffs on
Monday, Roberts unexpectedly highlighted one way they could do that.
“In an exchange with a plaintiff
attorney, Roberts suggested he’s skeptical that the mandate and its penalties
can be treated separately and may have opened the door to finding that
Congress’ power to impose the mandate springs from its broad taxing power.”
Here’s the Roberts remark from the
oral arguments that may have had the plaintiffs quietly stewing:
“The idea that the mandate is
something separate from whether you want to call it a penalty or tax just
doesn’t seem to make much sense. It’s a command. A mandate is a command.
If there is nothing behind the command, it’s sort of, well what happens if you
don’t file the mandate? And the answer is nothing. It seems very artificial to
separate the punishment from the crime. … Why would you have a requirement that
is completely toothless? You know -- buy insurance or else. Or else what? Or
So much for the claim by some experts that oral arguments
reveal nothing about the justices’ thinking. And so much for the expert
analysis that says Roberts was acting as a political animal, proving that the
court can be bipartisan – thereby securing his legacy as a statesman.
Again, let’s take a look at what Roberts said in the
past. Here’s a post from my Jan. 5 blog:
A story that went substantially
unreported over the long holiday weekend centered on Chief Justice John
Roberts' declaration that he has “complete confidence” in his colleagues’
ability to remain impartial in cases where their personal interests are at stake,
and noted that judges should not be swayed by “partisan demands.”
According to AP, the comment,
included in Roberts’ year-end report, comes after lawmakers demanded that two justices
recuse themselves from the high court’s review of President Barack Obama’s
health care law aimed at extending coverage to more than 30 million people.
Republicans want Justice Elena Kagan off the case because of her work in the
Obama administration as solicitor general, whereas Democrats say Justice
Clarence Thomas should back away because of his wife’s work with groups that
opposed changes to the law.
While not mentioning the upcoming
health care ruling, or any case in particular, Roberts’ year-end report
dismissed suggestions that Supreme Court justices are subject to more lax
ethical standards than lower federal courts and said each justice is “deeply
committed” to preserving the court’s role as “an impartial tribunal” governed
“I have complete confidence in the
capability of my colleagues to determine when recusal is warranted,” wrote
Roberts. “They are jurists of exceptional integrity and experience whose
character and fitness have been examined through a rigorous appointment and
confirmation process. I know that they each give careful consideration to any
recusal questions that arise in the course of their judicial duties.”
… While not specifically addressing
Kagan or Thomas, Roberts noted guidelines issued in 1924 by the American Bar
Association that stated a judge “should not be swayed by partisan demands,
public clamor or considerations of personal popularity or notoriety, nor be
apprehensive of unjust criticism.”
Maybe that’s the legacy Roberts
wants to leave.