[h/t Heather at VideoCafe]
When CNN and Fox both sent out text message alerts and erroneously reported that the Supreme Court had overturned the Affordable Care Act, I had my doubts about whether that news came to them in real time. When Tea Party True Wingnut Richard Mourdock published his "Yay! ObamaCare is unconstitutional!" video prematurely a week before the decision was actually released, my hair stood up on end because it dovetailed with numerous celebratory emails I was receiving from different Tea Party groups.
At the time, I speculated that if there was a leak from the court, it came via Ginni Thomas. I remain somewhat convinced that might be the case, since leaking anything from the US Supreme Court is widely considered to be a career-ending act.
Like everything else, though, this Supreme Court is unlike others, and CBS has two confirmed insider reports that Chief Justice John Roberts "flipped" from the conservative decision to overturn the entire law to the final decision which preserved the mandate, and thus the law, under the taxing power of the constitution.
In her report for "Face the Nation" today, reporter Jan Crawford claims to have two sources inside the Court who confirm that Roberts flipped his vote on the mandate (aka Personal Responsibility Donation), much to the chagrin of the other four justices, Kennedy in particular.
Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold.
"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this."
But this time, Roberts held firm. 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, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.
Leaks or speculation?
The Federalist Society is a favorite of Justices Scalia and Thomas, so it's not all that difficult to imagine leaks walking out of the court a little ahead of time, especially if those leaks actually spark some news reports that might find their way back to a "wobbly" Chief Justice.
Crawford notes that around Memorial Day, there were many reports emerging in the media about how damaged the Roberts Court would be if they struck down the entire law along partisan lines. Examples here, here, here, here, here and here.
And then on June 2, 2012, this tweet from Barton Gellman, quoting Ramesh Pannoru of National Review:
Ponnuru: inside sources at Supreme Court (really?) tell me the initial vote was 5-4 against Obamacare, but Roberts since turned wobbly.
— Barton Gellman (@bartongellman) June 2, 2012
Marcy Wheeler sees some correlation between that tweet and the Crawford quote in the article which also characterizes Roberts as "wobbly."
Jan Crawford has interviewed Justice Scalia at least one other time at a Federalist Society function, where he famously confessed to perhaps having a lax conscience:
Following up on this, Crawford asked Scalia if he ever found himself in a situation where he was torn between his personal conscience and his professional duty as a justice. He said no. After Crawford expressed a hint of incredulity — you’ve never encountered such a situation, in your many years on the bench? — Scalia quipped, “Maybe I have a lax conscience.” The resulting laughter cleared the air nicely.
It would appear that there's a better than even chance that his "lax conscience" may have also extended to lax lips, which in turn gave permission for some loose talk ahead of the actual opinion. While there were certainly other pointers that could have led media outlets to their preset belief that the conservative majority would outweigh the liberal minority on the court, nothing speaks louder than the early and noisy general consensus of those in the media that the Court would overturn the Affordable Care Act in its entirety.
That would explain this report, which felt like a non-sequitur at the time, where conservatives issued a strong warning to Republicans to "stand firm" on Obamacare. While this was ostensibly in response to the possibility that Republicans were actually considering a plan to replace the ACA, the loudest voices were the Club for Growth and Freedomworks. Freedomworks, of course, has direct ties to Ginni Thomas. Club for Growth has close ties to FreedomWorks, Americans for Prosperity, American Majority, and other TeaBircher groups. Let's just call Ginni the middle gear between the media (Daily Caller), the TeaBirchers (FreedomWorks, Club for Growth) and the United States Supreme Court (Clarence Thomas).
As I noted in mid-June, FreedomWorks sent an email invitation out to their members inviting them to a celebration of the end of Obamacare. Yes, they included a small disclaimer that even if the Court upheld the law, there would be reason to celebrate, but the gist of the email was an undeniable certainty that they would prevail.
So there were leaks. So what?
This should trouble everyone for a number of reasons. First, the law should have been the only concern here, and while there is certainly no single interpretation of the law and constitution, it seems to me that there are many, many instances where Scalia, at the very least, contradicted himself in order to twist the commerce clause around his little finger. In his opinion in Raich, the 2005 medical marijuana case Scalia stretched the commerce clause and twisted it far beyond precedent to interpret intrastate commerce as indirectly impacting interstate commerce in order to find a pathway to a conservative outcome.
Yes, the Court is partisan, without question. But when partisan agendas overtake reasonable interpretations of the law and actually seek to overturn the will of Congress, I'd say that falls into that most hated conservative category of "judicial activism."
Further, when those conservative justices then use public opinion by leaking key parts of their deliberation to key conservative players in order to conduct an internal debate outside of the confines of the Court's chambers, I'd say we have a problem with judicial integrity. A serious one.
We already know Clarence Thomas, and Antonin Scalia have sworn allegiance to Koch, et al over their constitutional duties. Samuel Alito is another idealogue with views just to the right of Attila the Hun, particularly when it comes to sentencing children to life sentences. We know that Anthony Kennedy is a conservative libertarian who is not any kind of moderate swing vote at all, and also holds his own views as hovering above legislative intent or the common welfare of the country.
In Roberts' case, it seems less clear. Marcy Wheeler thinks it relates to his corporatism. Imani Gandy thinks it was a way to put a limiting principle on the commerce clause while upholding legislative intent. Bmaz over at Marcy's place speculated ahead of the opinion, saying it would be a legitimate reading of the commerce clause (he expected it to be struck down on that basis).
However you interpret the opinion, I think we can all agree that legal principles were secondary to ideology. For over one hundred years, health care has been the last stand of conservatives and corporatists alike, and it all related to who could get it and who could not. This was true in Teddy Roosevelt's time, Franklin Roosevelt's, Harry Truman's, JFK's, Lyndon Johnson's, Bill Clinton's, and Barack Obama's. It was only THIS time that finally, we managed to shatter the principle that health care was the privilege of the moneyed few.
For that reason, I tend to think that Roberts stood against the harsh blowback of his fellow conservatives on the court for two reasons: First, because a 5-4 decision overturning the entire act would have been seen as entirely partisan and cynical, and his time as Chief Justice would have forever lived as the Citizens United Teabagger Court. The written briefs offered a reasonable and constitutional argument for the taxing power and he agreed with them, even if he doesn't much care for taxes. It's possible that he also viewed it as far more difficult politically for liberals to exercise their taxing power legislatively than commerce clause powers.
It's also possible that as a man who has had seizures in the past, he understands what it would mean to Americans who could not access health care because they were excluded from the payment system for that health care by virtue of a condition over which they had no control, and for that moment, had at least a measure of compassion for them.
Whatever the reasoning, there can be no question that the conduct of some conservatives on the Court was shameful with regard to this decision, just as it was in Citizens United, and history should be as unkind to them as it was to FDR's "Four Horsemen" along with Hoover appointee, Owen Roberts.