Reported by Jan Crawford on CBS Face the Nation:
O’DONNELL: We’ll start first Jan because you’ve done some reporting. The big question was why did Chief Justice John Roberts do what he did? You’ve learned new details.
CRAWFORD: That’s right, what was striking about this was that it was the conservative chief decisive vote, joining the liberal signature achievement and that was something no one would have expected in 2005 when President George W. Bush put him on the Supreme Court and that was something that not even the conservative justices expected back in march when the court heard arguments in this case. I am told by two sources with specific knowledge of the court’s deliberations that Roberts initially sided with the conservatives in this case and was prepared to strike down the heart of this law, the so-called individual mandate, of course, that requires all Americans to buy insurance or pay a penalty. but Roberts, I’m told by my sources, changed his views deciding to instead join with the liberals. He withstood–I’m told by my sources–a month-long desperate campaign by the conservative justices to bring him back to the fold and that campaign was led, ironically, by Justice Anthony Kennedy and why that’s ironic is because it was Justice Kennedy that conservatives feared would be the one most effort, of course, was unsuccessful, Roberts didn’t budge, the conservatives wrote that astonishing joint dissent united in opposition and Roberts wrote the majority opinion with the four liberals to uphold the President’s signature achievement.
Will post video link when available.
UPDATE: Full story is here: Roberts switched views to uphold health care law
Because Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the Court’s historic decision. He kept it for himself.
Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.
Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.
But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.
There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.
Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.
It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.
It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.
And later this:
Roberts then engaged in his own lobbying effort – trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as “arm-twisting.”
Even in Roberts’ opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy’s vote. Roberts even used some of the same language that Kennedy used during oral arguments.
But Roberts didn’t focus entirely on Kennedy, the sources said. He tried to persuade the conservatives to join at least the parts of his opinion with which they agreed, such as his Commerce Clause analysis.
“People, for good reasons of their own, often fail to do things that would be good for them or good for society. Those failures – joined with the similar failures of others – can readily have a substantial effect on interstate commerce,” Roberts wrote in his opinion. “Under the government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the government would have them act.
“That is not the country the framers of our Constitution envision,” Roberts wrote.
But despite Roberts’ strong language on the Commerce Clause, the conservatives would have none of it, the two sources said, even though there was no significant difference in their reasoning on that issue.
Indeed, since the four conservatives agreed the mandate went beyond the commerce power, the Court now has five Justices who would constrain what Congress can do going forward – imposing significant limits on federal power.
The majority decisions were due on June 1, and the dissenters set about writing a response, due on June 15. The sources say they divided up parts of the opinion, with Kennedy and Scalia doing the bulk of the writing.
The two sources say suggestions that parts of the dissent were originally Roberts’ actual majority decision for the Court are inaccurate, and that the dissent was a true joint effort.
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.
The language in the dissent was sweeping, arguing the Court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia – and then, there is Justice Kennedy.
“The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril,” the dissent said. “Today’s decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it.”