Ann Wilkins/AP Photo
Chief Justice John Roberts, one day after the health care ruling.
CBS is getting credit for one of the big stories of the day, reporting on the behind-closed-doors discussions of the United States Supreme Court as the nine Justices discussed the fate of the President's health care law. CBS Reports that Justice Anthony Kennedy made attempts to sway Chief Justice Roberts to stay with the four Conservative members of the court in finding that the individual mandate was unconstitutional, thus the entire law should be thrown out. But CBS wasn't first with this theory.
The supposition that the Chief Justice switched sides after initially siding with the Conservatives did not begin with the CBS report over the weekend. Writing in Salon.Com last week, Law Professor Paul Campos speculated that the Chief Justice changed sides, probably at the last minute and he came to that hypothesis from reading the opinion by the Chief Justice in which he joins the liberal members in finding that the Mandate was constitutional solely because the penalty for not buying health insurance is really just a tax. His argument is gleaned from the language and diction used throughout the Opinion, the Concurrence and the Dissent.
Professor Campos joins Lawrence O'Donnell tonight at 10pm ET. In the meantime here is his piece that likely beat everyone to the punch.
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So this opinion is really 4-1-4 on the Commerce Clause, more than 4-5?
I think I buy it and like the reasoning. The court was beginning to look like "packed" court packed with hacks whose constitutional theory was what was good for the Republican Party clearly not what any thoughtful justice would abhor
Whatever happened to opinions on constitutional law and not partisanship? When ruling it shouldn't be about which political you are in...
Agree.
Apparently the Supreme Court, in it's wisdom, goes behind a curtain and flips a coin to decide its rulings. The Constitution of the United States has nothing to do with it.
If Tony Kennedy were coming around my office nagging me, I'd vote against him just to get him to shut up and go away.
Roberts may have ruled the way he did because he remebered this:
There are two well established rules of statutory construction used by courts everywhere in the United State, and they are:
1. Where a statute is attacked as unconstitutional, courts are duty bound to construe the law in a way that upholds it, rather than strikes it down.
2. A corollary to that rule is the doctrine of "severability." Where possible, if part of a law is unconstitutional, the courts will strike down only the offending part and leave the rest alone. Only where the goods parts are so totally dependent on the bad parts of the law, will the entire law be tossed out.
The Affordable Care Act was sustained pursuant to the first rule of statutory construction.
Only in the U.S. Supreme Court do the Justices find it necessary to write 60 pages to do what most state appellate courts say in 3 or 4 pages. This is what confuses people.
Carl Kirsch, Attorney at Law, Atlanta, GA
Only in the U.S. Supreme Court do the Justices find it necessary to write 60 pages to do what most state appellate courts say in 3 or 4 pages.
While it is more than possible Roberts decided he didn't want yet another 5-4 decision breaking on ideological grounds going down in the history books as taking place on "The Roberts' Court", I'm not 100% convinced Roberts wasn't on the fence all along.
Reading his 150 page decision, he spends 130 of those pages defending his decision. You don't spend that much time explaining something you're waivering on.