Executive summary: two days ago CBS News Chief Political and Legal Correspondent Jan Crawford authored an article that alleged that Supreme Court Chief Justice John Roberts ‘went wobbly’ on Thursday’s Supreme Court decision for reasons unrelated to his determination of the legal merits of the case. Ms. Crawford also alleged that there is ongoing fallout between Roberts and the four Justices that dissented with the 5-4 majority that held that Obamacare was legal as a tax; and she is at least insinuating that Roberts’ decision was based on calculation of how the decision would be received by the American Left and/or the Media (but I repeat myself). As you might imagine, this story has gotten a little play in conservative and Republican news sources, in much the same way that the Amazon river is somewhat damp.
Now, the above is a rather serious allegation about Chief Justice Roberts. And it is in fact an allegation that – if true – is very problematical. But what is also problematical is that the entire story rests on two uncorroborated, anonymous sources. Now, admittedly, Jan Crawford is a very well-respected, very knowledgeable, and very well-connected reporter on the Supreme Court. She is, in fact, more well-respected, more knowledgeable, and more well-connected than I am on this matter. But… her story is still based on two uncorroborated, anonymous sources; and in the forty-eight hours I have not in fact seen anything that would back up the allegations in her story. The closest to it that I have seen is John Fund’s article; John indicates that his anonymous sources are telling him that Roberts had been pretty much equivocal about tossing the entire law all along. Now that, if true, is a significant difference from Crawford’s lede “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 and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations. ” – and it doesn’t actually address any suggestion that Roberts changed his mind on non-judicial grounds.
Now it could very well be that Crawford is reporting what actually happened (I will confess, I had a much more inflammatory title and take planned on this entire situation, until I was given a salutary private attitude adjustment about it). But I’m not only uncomfortable about the fact that this entire interpretation on Roberts’ decision is based on somebody whispering from the shadows; I’m even more uncomfortable about the fact that 48 hours is easily enough time for more leaks and revelations to follow the first… and to the best of my knowledge they haven’t happened. If Orin Kerr is correct here in saying that Crawford’s sources reveal “the kinds of details that only the Justices and their clerks would likely know,” then we should be seeing people coming forward with more details. Because it’s been my experience doing this that, once the top people start talking, the folks on the lower rungs of the ladder feel freer to talk as well. And when I haven’t seen that in the past, it’s often been because there’s no actual story there in the first place.
Again, it could be that the story is true. But I do not think that it is unreasonable for me to think that allegations of this nature should have something more backing them than the simple say-so of somebody who I have never even met personally; and I say this fully aware of the fact that there are people who I have met (and respect) who disagree with me.
Moe Lane (crosspost)
It’s all pretty much academic, isn’t it? Assuming Roberts made his decision on venal political grounds, where does that get us? What’s done is done.
The core issue really is the endorsement of the massive expansion of an already massively expanded federal government by proclaiming the tax power to be unfettered. Wow.
I agree with E-horseman. It doesn’t matter whether Roberts flipped, was coerced or stoned out of his gourd. ObamaCare is the law of the land, and the spineless GOP leadership will never repeal it.
This guy looks for all the world as if he’s about to refute the story. He never really does though.
http://www.scotusblog.com/2012/07/the-narrative-of-judicial-intrigue/
And I have to say he’s a bit of a doofus. I offer as proof –
Often, it seems, such “narratives” become self-fulfilling. In 2010, for example, the political writers almost to a person began early on to talk of a Republican sweep in that year’s elections, and the voters made it happen.
And this purports to be a counter-leak.
Roberts wrote both Obamacare opinions
A Court source tells Salon the chief justice wrote the majority opinion and much of the dissent in the ACA case
http://www.salon.com/2012/07/03/roberts_wrote_both_obamacare_opinions/
I come here not to defend John Roberts, but simply to ask what his motivations are.
I cannot believe that anyone six weeks into the game can suddenly have an epiphany and realize they are a closet liberal. So the story we are supposed to believe is that John Roberts decides the biggest court case this administration will face is his time to come out of the closet? Yeah, OK it is possible …. But is it probable?
Would not Ockham’s razor demand that we look for a simpler answer?
For the last three years people have pointed to the Chicago way of doing things going national in Washington, D.C. Is it not common for a judge to be a reliable tool of Chicago thugs? This IS how things are done in banana republics.
There are two ways to own a judge. You can buy them outright if the price is right, or you can make it abundantly clear that you have the means and inclination to doing something to them or people they love that will scare them into submission.
Is intimidation with the full force of the government not a common tool of this administration?
Personally, I think the “He changed his mind under scrutiny and pressure of the media” story is the cover. I cannot really believe at this stage in his career he is so thin skinned. I think it is imminently more plausible that they got to him. Good bad or indifferent we can all be “gotten to” the only difference is that in the past people maybe chose not to cross that line.
f Orin Kerr is correct here in saying that Crawford’s sources reveal “the kinds of details that only the Justices and their clerks would likely know,” then we should be seeing people coming forward with more details. Because it’s been my experience doing this that, once the top people start talking, the folks on the lower rungs of the ladder feel freer to talk as well.
It’s been my experience that when the establishment media decide that a story doesn’t advance The Narrative, it doesn’t get reported. (E.g., “Fast and Furious,” Reverend Jeremiah Wright, Bill Ayers …) Any claim that Chief Justice Roberts didn’t always intend to uphold Obamacare strictly on its merits doesn’t advance The Narrative.
And the possibility, as The Donald pointed out, that Chicago strong-arm tactics might have had something to do with the decision really doesn’t advance The Narrative.
I’ll have to agree with the last two points on this. In this age of “We decide what’s newsworthy” Lamestream Media journalism, it’s a whole lot easier to squelch unwelcome facts that oppose the narrative.
I can honestly believe Roberts was targeted as being the justice most likely to switch, and then given ‘reason’ to do so by the Chicago-on-the-Potomac machine.