Could the 5-4 Supreme Court decision which upheld Obamacare have turned out differently? According to news reports, the answer is a resounding YES. The liberal group of justices were set, conservatives like Thomas, Alito, and Scalia were set as well. But Chief Justice John Roberts was supposedly ready to vote with the conservatives to strike down Obamacare... until he jumped ship.
As Jan Crawford reports for CBS News, "Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position."
Roberts formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold.
"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this."
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."
The question is... why? Why would a man who is nearly universally acclaimed for his intelligence and knowledge of the law go back and forth? Could it be... politics?
In a piece by Charles Krauthammer, the logic (or illogic) appears to be a balancing act Roberts is playing between being a constitutional conservative and chief justice -- the person charged with maintaining the integrity of the Supreme Court.
Why did Roberts do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court's legitimacy, reputation, and stature.
As a conservative, he is as appalled as his conservative colleagues by the administration's central argument that the individual coverage mandate is a proper exercise of the authority to regulate commerce.
That's Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary's arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade.
Give me a break! Yes, Roberts and the court would take political heat for overturning Obamacare. But if it is unconstitutional... then guess what? It's unconstitutional! The job of the Supreme Court is to rule on the constitutionality of laws. Period.
As for John Roberts... he's bolting the country for a while. As noted in the AP story on GOPUSA, Roberts will be teaching a class for "two weeks in Malta, the Mediterranean island nation." Roberts joked, "Malta, as you know, is an impregnable island fortress. It seemed like a good idea."
Roberts appeared Friday at a conference hosted by the Judicial Conference of the District of Columbia Circuit, one day after the Supreme Court said the federal government can require citizens to buy health insurance. The impromptu 35-minute session featured Roberts answering alternating questions from Chief Judge David B. Sentelle, of the D.C. Circuit Court, and Chief Judge Royce C. Lamberth, who heads the U.S. District Court for the District of Columbia.
Neither judge asked Roberts directly about the health care decision.
Rather, Roberts responded with the Malta quip after Sentelle asked him whether he was "going to Disney World" now that the court has adjourned for the summer.
Whether it's Disney World or Malta... it's probably a good idea for Roberts to get out of town. As both Crawford and Krauthammer write, Roberts had more than just the law steering his decision. He had politics.