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...Amazing to learn all this so quickly. Who are the sources? The phrase "specific knowledge of the deliberations" seems to imply that Crawford heard from 2 of the Justices (presumably 2 of the 4 conservatives).
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....
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.
Crawford tells us that Roberts initially agreed that the mandate was unconstitutional but she's a little cagey on the question of severability — that is, whether the whole legislation should fall along with that one provision, which is what the rest of the conservatives wanted. But Roberts assigned the opinion to himself and in the process of working on the opinion would have been aware of the pressure on the Court. As Crawford puts it "Roberts pays attention to media coverage" and he's "sensitive to how the Court is perceived by the public."
[By May] it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.I'm guessing this source is Kennedy. I'm also guessing that what gnawed at Roberts in the process of writing was the momentousness of striking down the entire statute, especially along what would be perceived a conservative-liberal 5-4 split.
It is not known why Roberts changed his view on the mandate and decided to uphold the law. 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.
Roberts developed his taxing power argument and tried to get "at least Justice Kennedy" to join the opinion to give it a greater solidity.
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."Crawford includes a lot of material here about Kennedy's approach to judging and how he's misunderstood:
Even in Roberts' opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy's vote. Roberts even used some of the same language that Kennedy used during oral arguments.
Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy - in other words, changeable and too moderate.Why is this analysis in the article? I'm guessing it's because Kennedy expressed himself. They openly mock me.... Openly!
That's not entirely fair to Kennedy. In fact, there are underlying and consistent themes in his jurisprudence, much more so than in the jurisprudence of O'Connor....At this point the article reads like PR for Kennedy. Why?
Kennedy... is strong on issues of federalism - and is remarkably consistent. His opinion in a 1999 case, Alden v. Maine, is considered one of the Court's finest in that area.Oh, come on! Now she's just fawning. Considered one of the finest... by whom? There are things you can say about Alden — a case that certainly does outrage liberals — but "finest"? It is true though — and I would agree — that Kennedy has stamped his mark on the federalism cases.
Crawford's piece ends this way:
The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.Strong admiration for Kennedy — who really has distinguished himself over the years by connecting the structure of federalism to the protection of the liberty of the individual.
The language in the dissent was sweeping, arguing the Court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia — and then, there is Justice Kennedy.
"The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril," the dissent said. "Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."
ADDED: Back on March 30, right after the oral argument, we were talking about "the way the Solicitor General, Donald B. Verrilli Jr., ended his argument by connecting the health care law to liberty," was intended to appeal to Anthony Kennedy, with his longstanding interest in federalism as a mechanism for protecting individual liberty. But it was a very lame appeal, the notion being only that if people get the health care they need, then they'll be able to "enjoy the blessings of liberty."
ALSO: 5 years ago, when O'Connor was leaving the Court, Jan Crawford wrote — with admiration, I think — about Justice Kennedy, and we discussed it here.
AND: Math fix on the "also."
UPDATE: I take a closer look at the Crawford article and speculate about possible Kennedy motivations.