We're focusing on the Supreme Court verdict on ObamaCare and mainly focusing on the reporting of Jan Crawford (CBS News) and the Fresh Air (NPR) discussion with Adam Liptak (New York Times). I've read and listened to other things but everyone's working off Jan Crawford's reporting today with the exception of Adam Liptak.
If Jan Crawford's reporting is accurate (and she has a solid record of nailing things down), Chief Justice John Roberts originally was going to vote against ObamaCare. She's working from two sources which has created a minor tizzy at the tizzy prone sites (CJR, for example) who swear that this just isn't done. Justices don't talk and clerks don't. Clerks don't? Two words: Jeffrey Toobin. Clerks talk all the time. Most do it on background (and after they are no longer clerks). Toobin did it on the record in a book he put his name to.
I have no idea who Jane Crawford's sources are. (Clerks and Justices don't make the DC social scene. So any gossip on the dinner circuit would be second hand at best.) Assuming they are correct, Roberts changed his mind.
Adam Liptak believes Roberts changed his mind and cites the ruling and the dissent including Judge Ruth Bader Ginsberg's dissent which he feels (I agree, but only after he made the observation, I didn't pick it up on my own while reading through the opinions this weekend) is too strong for someone who emerged victorious. Meaning she wrote in anticipation of an original vote tally where Roberts sided with those opposed and ObamaCare was struck down. Here he is:
The Ginsberg opinion on the Commerce Clause grounds is very bitter and nasty and slashing, and not the sort of tone you might take from somebody who needs the vote of the chief justice and, in fact, in the end prevails. So those are a handful of hints. But it's consistent with the idea that there was some moving around in the deliberation and drafting process.
Liptak floats a possible reason for Roberts changing his mind if he did. It's been floated by others (you heard it on Friday but as why Roberts voted as he did -- no one was reporting Friday that Roberts had switched his vote). It boils down to the fact that Roberts was concerned with the way the Court would look. He was concerned, in this argument, that the court might appear partisan.
Liptak feels this is a valid reason for ruling.
Liptak is 100% wrong. Here's Liptak on that:
I do think that John Roberts takes himself very seriously, and he should, as the custodian of the prestige and legitimacy of the branch of government that he hits. How much that entered his calculations in this particular case, only he knows, but it's a perfectly appropriate consideration to make sure that your branch - which is meant to be disinterested and apolitical and judicial - should not be perceived as yet a third political branch of government.
The law is the law. It's not the law some of the time or part of the time. It's not the law on only even-numbered days. For the law to warrant any respect at all, it has to be consistent. A Justice who disregards the law isn't a qualified Justice (even if he or she rules in the way I would like). If the law isn't applied equally and fairly, you no longer have a justice system.
Liptak is saying it's an appropriate consideration -- fear of public opinion. No, it's not and it was disturbing to hear Liptak state that. The opinion did not come in a vacuum. It came after weeks and weeks of Democratic politicians (my own House Rep Nancy Pelosi among them) insisting it would be a political decision if it didn't rule in favor of ObamaCare. And you had Democratic operatives as well making these comments on various TV networks. In addition, you have in the not so distant past, Barack's State of the Union Address where he felt it was appropriate to call out the Supreme Court. (That was inappropriate.)
So if Roberts did change his mind and if one of the the factors was public opinion of the Court -- or if he didn't change his mind but based his ruling on public opiinion of the Court -- then he should be ashamed of himself and he wouldn't be fit to wear a judicial robe.
That would mean that, in the future, any administration that wanted the Court to rule in its favor (while Roberts was Chief Justice) would only have to attack the Court in and to the press repeatedly and the Court would then be so intimidated that it would hand the administration the verdict it wanted.
That's not an independent judiciary nor is it three co-equal branches of government.
So if Roberts' decision was based upon fear of public opinion, of the image of the Court, then he didn't serve justice.
Hopefully that's not what happened. Hopefully, he voted as he intended based on the law. (As he intended can include changing his mind. As Liptak notes, changing minds is not uncommon as someone goes further into the issues surrounding a case).
But if that's not what happened, if a standard other than a law was applied to the determination of ObamaCare, the US doesn't have a justice system. It has a whim system. It has an intimidation system. Call it an abdication, an intimidation, a dereliction but grasp that, if that happened, the law no longer matters.
Okay, Kat asked me to write brief and about a light topic so that's going to be it. Here's today's "Iraq snapshot:"