CBS News Report Confirms Roberts Switched Health Care Vote

CBS News' Jan Crawford confirms the truth behind speculation following Thursday's Supreme Court opinion authored by Chief Justice John Roberts upholding the Affordable Car Act that the Chief Justice had switched his vote after initially siding with the Court's four conservative justices to strike down the individual mandate, the cornerstone of the Act that mandates that all individuals not currently coverered by health insurance purchase a policy or pay large tax penalties to the government. Citing two sources with knowledge of the Court's deliberations, Crawford says Roberts initially sided with Justices Alito, Kennedy, Scalia and Thomas to strike down the individual mandate when the Court conferenced to discuss the case after the oral argument in March. What Roberts did not make known to the other justices during conference was whether he believed the entire Act should be struck down as unconstitutional or whether portions of the Act could be severed so portions deemed constitutional would survive as law.


Crawford claims that Roberts, unlike other justices, pays close attention to media reporting of the high court's deliberations. As Roberts felt public pressure building, he looked for a way to uphold a significant part of the law on a different ground rather than simply striking the individual mandate as an overreach of Congress' power to regulate commerce. By May, the four conservative justices became aware that the Chief Justice had grown wobbly on his stance. Crawford says her sources tell her that Roberts began lobbying Justice Kennedy to join him in upholding the law under Congress' taxing authority, an issue that had received little discussion when the case was heard in the courts below. Kennedy balked at switching his view, and he and the three other justices tried in vain to pull Roberts back to his original position for nearly a month before concluding his mind could not be changed. According to Crawford's sources, the dissenting opinion, which the other four thought would be the majority opinion was truly a joint effort with Justices Kennedy and Scalia doing most of the writing of it. She says reports that Roberts had originally written the dissenting opinion are inaccurate. To show their disapproval of Roberts' switch, the four chose to ignore his opinion according to Crawford's sources: "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."


Regardless of how you feel about the legal outcome of Obamacare, I find it very disturbing that the Chief Justice of the Supreme Court would allow public pressure to alter his decison-making process in deciding cases before the Court. Supreme Court justices are given life-time appointments to the Court to help insulate them from public pressure like the political branches of government. Theoretically, Supreme Court justices are suppose to decide cases based upon the law, not political considerations. Yet Roberts seems to have decided this case more out of concern for how he is viewed publicly than what he believes the Constitution required him to do. During his confirmation hearings, he insisted that he was not going to be a judicial activist. His critics believe that is the only way you can describe his decision to rewrite a key provision of the Affordable Care Act that expressly provided that the invididual mandate was a penalty to be read as a tax.

Crawford, incidentally, landed the first TV interview with Chief Justice Roberts after he was appointed by President Bush to the bench. She is a graduate of the University of Chicago law school and attended school when President Obama began teaching a constitutional law class at the law school as a guest lecturer. She also formerly worked as a reporter for the Chicago Tribune at the same time David Axelrod worked as a political reporter for the newspaper.