Chief Justice Roberts voted to uphold Obamacare based on his opinion that it did not come under the commerce clause but was a tax that the govt had every right to impose. The govt has been adamant, before and after the vote, that it IS NOT A TAX, it’s a penalty, so obviously Roberts opinion was wrong and I question how Roberts could have made such an erroneous mistake. Where do we go from here, there has to be challenges that maybe will take it back to the Supreme Court? He has to know he erred, the question is why. – Phoebe
CBS News’ Jan Crawford reported that two unnamed sources with knowledge of the deliberations told her that Justice Anthony Kennedy, usually the court’s swing vote, launched a “relentless” but unsuccessful campaign to get Roberts to come back to the fold after he changed his mind and joined the court’s liberal wing. Kennedy was flatly opposed to the law and joined the three conservative justices in writing an unsigned dissent that pointedly refused to engage with Roberts’ majority opinion. The justices did not sign on to any part of Roberts’ opinion, even portions with which they agreed. (Earlier reports that their dissent was originally the majority opinion were wrong, Crawford writes.)
Crawford did not find out why Roberts switched his vote, but she floated two theories.
The first is that Roberts, unlike some other justices, pays attention to media coverage and is highly “sensitive” to the court’s public image and legacy. If Roberts had struck down the law, many court-watchers and legal scholars would have derided the court as activist and over-partisan, a characterization some were already making following the Citizens United decision, which swept away decades of congressionally passed campaign finance as a violation of the First Amendment.
The second is that Roberts could not have relied on precedent in striking down the law, because Congress had never passed a law quite like health care reform. He would have had to advance his own theory in overturning the law, which would have opened him up to criticism of judicial overreach.
We’d like to add our own, not-so-exciting theory into the mix: That Roberts started to write the opinion striking down the law, and then simply decided that he was wrong and that the best way to uphold the Constitution was to keep the law as a tax.