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John Roberts, Man of Integritude


I hope to get to it later this year, but fortunately CNN has published the excerpt of Joan Biskupic’s new biography of John Roberts that deals with his political maneuvering over NFIB v. Sebelius.

Some of her reporting just confirms what we already knew. Several reporters, including Paul, had found out from internal leaks that Roberts changed his mind after the conference vote. And given how obvious it was that Kagan and Breyer voted strategically — Kagan demolished the feeble claims that this latest of many changes to the conditions attached to the offer of Medicaid funding was the one and only unconstitutional use of the federal spending power in American history at oral argument, and the odds that Breyer (who has arguably the broadest conception of federal power of any Supreme Court justice in history) would get well to the right of any of the partisan Republican lower courts to have ruled the law unconstitutional were zero — it was also pretty clear what the quo was, although it’s good to have this established by a top-rank Court reporter.

But there’s some really critical new detail here:

There was no sign on March 30, 2012, that any of the nine would defy the usual ideological and partisan alignment. That political division bothered Roberts, but he felt just as strongly about boundaries on the commerce power as the other four in the majority did.

Regarding Medicaid, all four liberals voted to uphold the program, and Roberts joined them. At the same time, he expressed some tentativeness.

No vote had been taken related to congressional taxing power. It did not seem to matter, because the individual mandate was going to be struck down. The only uncertainty was whether any of Obamacare would survive.

Roberts did not want the entire law to fall. A pro-business conservative, he understood the importance of the insurance industry to US businesses, and he was genuinely concerned about invalidating an entire law that had been approved through the democratic process to solve the intractable health care problem.

But his four fellow conservatives believed that if the individual mandate was going down, it should take the whole law with it. They believed all the pieces were interlocked. Roberts thought the individual mandate was entwined with only two other provisions, those known as the “community rating” and “guaranteed issue.” The community-rating section prevented insurers from charging some individuals higher premiums than others based on health status. The guaranteed-issue section required insurers to cover people regardless of pre-existing conditions.

As was his prerogative as chief justice, Roberts chose to write the majority opinion, giving him the ability to shape what the court would ultimately say. Senior liberal justice Ginsburg was ready to write for the dissenting foursome.

Soon after, Roberts began trying to persuade Kennedy to find that the unconstitutional insurance requirement could be severed from the rest of the law. But Kennedy — often a swing vote on high-profile cases — was firm in his position. He was puzzled, and then put off, by Roberts’ view that the ACA provisions could be severed.

In summary, Roberts wanted to inflict major damage on OBAMACARE, but also thought that a party-line vote invalidating the whole thing would look bad. So he advocated for a severance argument that would be more “modest” than striking down the exchanges entirely. Incidentally, Roberts was wrong to think that eliminating guaranteed issue would be no big deal — making it impossible for people who most need insurance to acquire it, combined with taking away incentives for younger and healthier people to purchase it, would basically render the exchanges inoperative. But — as was also true of his inept re-writing of the Medicaid expansion — it’s yet another example that the New Deal norm that judges shouldn’t second guess economic policy decisions was right.

This also reveals something often misunderstood about Kennedy. That he spend many years as the Court’s median vote, or one of its common median votes, doesn’t mean that he was a COUNT TO FIVE strategic operator or weak-willed. He was idiosyncratic but he believed what he believed strongly; attempts to flatter or bully him to change his mind — something Scalia also tried in Casey — just made him dig in more. Once Roberts figured this out, he had to turn to Kagan and Breyer.

Later in April, Roberts tried another path. He began exploring whether, as the Obama administration had argued, the individual mandate could be upheld as a tax. (CBS’s Jan Crawford reported earlier on Roberts’ reversal on the mandate, but the full story of Roberts’ switch, including on Medicaid expansion, and the changed votes of two liberal justices is detailed now for the first time.)

The chief justice then turned to Breyer and Kagan, the liberals most likely to work with him on contentious issues, to see if they could find common ground.
At the same time, Roberts began incorporating arguments that would invalidate the Medicaid expansion. This was a strange turn. None of the lower courts that had taken up the ACA had rejected the Medicaid expansion, and it wasn’t seen as controversial in terms of constitutional debate and public controversy.


Breyer and Kagan had voted in the private March conference to uphold the new Medicaid requirement, and their votes had been unequivocal. But they were pragmatists. If there was a chance that Roberts would cast the critical vote to uphold the central plank of Obamacare — and negotiations in May were such that they still considered that a shaky proposition — they were willing to meet him partway.

Yes, it’s hard to overemphasize what an afterthought this dog of an argument, which has no textual support and and extremely weak doctrinal support, was. The Court landed on it not because the argument was any good, but because it was where Roberts could make a deal that could make him look like a judge rather than the politician he was being. (Also, for whatever reason in 2012 both most supporters and opponents of the ACA saw the regulated exchanges as by far the most important part of the bill, with the more important Medicaid expansion getting much less attention. Roberts’s assumption that if he upheld the exchanges while inflicting damage to the Medicaid expansion this would be reported as “Roberts saves Obamacare” turned out to be entirely sound.)

As for Kagan and Breyer, they didn’t cover themselves in glory here but I can understand what they were thinking, particularly since it was hard to trust Roberts to stay firm on the Medicaid expansion. Locking him into preserving the exchanges as is and the Medicaid expansion as an add-on was a reasonable strategic judgment, arguably as close to their preferred sincere outcome (uphold the whole thing) as could be achieved. I’d also guess they were somewhat naive about how many Republican states would turn down the expansion; I know I was, although I really shouldn’t have been.

The decision was revealed on June 28, the last courtroom sitting of the 2011-12 session. As Roberts began reading his opinion from the bench, he tried to speak steadily, but he was nervous. About 13 minutes into the 20-minute announcement, after he had summarized various legal rationales, he misstated the overall judgment. Few noticed the slip because he had already laid out the reasoning.

The holding Roberts reached was better than striking down the ACA altogether, although I’m not going to give him a lot of credit for not just reaching the obviously correct decision that the ACA was plainly constitutional in its entirety and the “constitutional” arguments raised against it were reverse-engendered nonsense. It made sense that Roberts would misstate the judgment — law had nothing to do with it.

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