Apparently I was not too far off in my speculation the other day that Chief Justice Roberts (now holed up in Malta), may have switched his vote to protect the Court from political controversy. A CBS report says that:
Unprecedented leaks of behind-the-scenes information at the US Supreme Court are raising questions about whether the threat of political attacks and other potential criticism played a role in the high court’s recent decision to uphold President Obama’s health-care reform law.
The most detailed leaks came in a CBS News report over the weekend, suggesting that Chief Justice John Roberts may have switched sides in the high-profile case in part to insulate the court and his own legacy as chief justice from election-year criticism should the court strike down the massive reform law.
Time magazine is reporting on their web site that the “leak” most likely came from a Justice, not a clerk. I would speculate that it might be Scalia, but we have nothing to base that on other than his outspoken nature. Time says that Chief Justice Roberts is keenly aware of the Court’s position as a branch of government and found a way to uphold Obamacare to protect the Court from political criticism and potential political interference in the Court’s affairs.
According to the original story by CBS, once the Conservative Justices learned that Roberts was switching his vote on the penalty vs. tax issue, they were livid, evidenced by Justice Kennedy’s relentless hammering of Roberts for four months prior to the publication of the opinion.
This makes sense because in their dissent on this issue they were extremely critical of Roberts’ rationale on the tax issue:
In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.
Note their emphasis on “never.” It is clear that Roberts just invented his tax argument to uphold Obamacare for political reasons.
So much for the Guardians of the Constitution.