‘Obamacare’ ruling: Why did Roberts switch sides?

Thanks to leaks from court insiders to CBS News, we know that Roberts initially voted to strike down the law.

There’s no other word for it, said John Podhoretz in the New York Post. Supreme Court Chief Justice John Roberts is a “coward.” I don’t say this just because Roberts voted with the four liberal justices to uphold President Obama’s Affordable Care Act in last month’s landmark decision. I say it because we now have learned—thanks to leaks from court insiders to CBS News—that Roberts initially voted to strike down the law, but changed his mind. Why? The chief justice was apparently worried that if the court struck down the law’s mandate that people buy health insurance, the White House and the liberal media would launch a withering assault on the court’s legitimacy, accusing its conservative majority of engaging in blatant political partisanship. In his desperation to uphold the law, said Rich Lowry in NationalReview.com, Roberts resorted to some thin and transparently twisted logic. He agreed with his four fellow conservatives that the Constitution did not permit Congress to require citizens to buy private health insurance. But Roberts then devised a trick: The law’s “penalty” for violating the mandate, he said, was not a penalty but a “tax,” allowable under Congress’s taxing power. Voilà! Roberts had figured out how to end up with “the only 5–4 decision that wouldn’t subject his court to the calumny of the Obama administration and law-school deans everywhere.”

He deserves great credit for doing so, said Jeffrey Rosen in NewRepublic.com. After the conservative majority prevailed in a string of extremely polarizing 5–4 decisions—from Bush v. Gore to the infamous Citizens United campaign-finance ruling—a recent Gallup poll found only 37 percent of Americans expressing “strong confidence” in the Supreme Court’s neutrality. One more bitterly disputed, 5–4 ruling, tossing out the main accomplishment of a Democratic president, might easily have eroded “the institutional legitimacy of the court” past the point of repair. Instead, wisely, Roberts “placed the bipartisan legitimacy of the court above his own ideological agenda.” That decision has earned him cries of “Traitor!” from some conservatives, but this was “an act of judicial statesmanship.”

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