When Barack Obama began an odd PR campaign against the Supreme Court following the oral arguments in NFIB v. Sebelius, my colleague Ben Shapiro speculated that the President may have hoped for Justice Anthony Kennedy to change his vote, as he had done several times in the 1990s. However, according to a report by CBS’s Jan Crawford, it was in fact Chief Justice John Roberts who switched his vote and upheld the Affordable Care Act as constitutional.
Much has been written criticizing the tortured logic of Roberts’s majority opinion, and as the opinion is examined more closely, legal analysts will likely find even more to hate. But for those like me who are not lawyers and have only a layman’s understanding of the decision, one simple, damning fact stands out: Chief Justice Roberts interpreted a law that does not exist to justify one that does.
Roberts upheld the ACA based on the premise that what Congress had not designated a tax was a tax. When U.S. Attorney Anthony Verrilli referred to the individual mandate as a tax during the case’s oral arguments, Justice Kagan responded, “aren’t you trying to rewrite the statute, in a way?” And that’s exactly what Roberts did and Kagan voted for.
And why would five Supreme Court justices, one of whom was supposedly an originalist, take such a step–literally legislating from the bench and reaching beyond the Court’s constitutional authority? Why would Roberts sign on to such a violation of the Court’s proper role, much less spearhead it?
Here’s why: NFIB v. Sebelius is, at its core, a CYA maneuver. From Crawford:
Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.
There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.
Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.
It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.
Conservative pundits such as Charles Krauthammer have opined on Roberts fearing for the “integrity” and “image” of the Court–that the decision would make SCOTUS look too “partisan” in the eyes of the public. If anything, that’s as damning an admission as saying Roberts changed his vote to appease Obama. “Image” should have nothing to do with the constitutionality of a law. “Reputation” is not a compelling reason to declare a law constitutional using language it does not contain.
Roberts’s decision was to preserve his own hide. “Protecting the integrity of the court” is a line to euphemize this sad truth: he lacked the moral fortitude to accept a lifetime of revulsion from the left and the press. He chickened out of facing ignorant collegiate hecklers, like Scalia and Thomas do all the time, at his speaking events. He put his personal comfort before literally centuries of jurisprudence.
Many on the right have scratched their heads trying to figure out Roberts’s reasoning, churning out fantasies of “long-term victory” and “chess, not checkers,” but none of those rationales stand up to Occam’s Razor as well as this: Roberts faced a choice to become either a rock star or a pariah in his D.C. social circles.
His colleague Anthony Kennedy, feared to be the swing vote crumbling to outside pressure, chose the latter to uphold the integrity of the Court–to limit its power only to interpret laws as they have been written. Roberts did not, compromising both himself and the Constitution he swore to defend.