Couple of thoughts about 11-393. First, wow were the experts' predictions generally off the mark. Remember how just a few days ago the "smart money" (i.e., Intrade) was telling us that the individual mandate would be struck down. Even the really smart money (i.e., former Supreme Court clerks) were saying this. I'm going to file this alongside my memory of the 2008 New Hampshire primary. I recall hearing commentators predict on the afternoon of the primary that Hillary Clinton would pull out of the race that evening. Yeah. They couldn't even figure out that Clinton was going to win New Hampshire -- nor that, even if she had lost, she was going to stick around for a while.
Second, amidst all the talk of the leak-proof Supreme Court, I was surprised to see David Bernstein's speculation that back in May "there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate." I'm not doubting the accuracy of David's point, but I was surprised by it given the Supreme Court doesn't leak theme. I'll be very interested in learning whether this was true and what those circles might be.
Third, I'm wondering what effect this decision will have on Justice Kennedy's reputation?
Fourth, as I alluded yesterday, I'm going to be interested in seeing whether the Supreme Court's decision will deflate the popular constitutional argument that ACA was unconstitutional. This is a great moment to examine the relation between formal statements from the Supreme Court and public constitutional understandings.
I'd like to know who could put "pressure" on the Chief Justice of the United States Supreme Court, who has a lifetime appointment and is beholden to no one. If "pressure" means sustained and, ultimately persuasive argument, I get it. Besides that, what? What lightening bolt could be hurled at him and hit the mark?
Posted by: AGR | June 29, 2012 at 02:26 PM
Hi, Al. All I can tell you is that I heard this rumor contemporaneously. I don't at all vouch for the accuracy of any details, and indeed I only heard the rumor myself quite by accident. I certainly remember my surprise that it was Roberts, and not Kennedy, who was suspected of going "squishy."
Posted by: David Bernstein | June 29, 2012 at 02:33 PM
Thanks, AGR and David.
David, I now see that Paul Campos posted an op-ed on Slate after your Volokh post -- using similar language to you -- about political pressure on Roberts. ("Rumors had been circulating in legal circles for weeks that Chief Justice Roberts in particular was under enormous political pressure not to be the vote that would overturn the most significant piece of social legislation passed by Congress in decades.").
http://www.salon.com/2012/06/28/did_john_roberts_switch_his_vote/singleton/
Posted by: Alfred Brophy | June 29, 2012 at 03:08 PM
The tell-tale "***" near the end of the "dissent" - the only portion that reads like a dissent and that portion of the "dissent" clearly directed at Roberts - makes clear that Roberts switched his vote. The dissent was the majority opinion.
The "pressure" on Roberts seems to be his own sense that the reaction to overturning the ACA would discredit the court in the eyes of legal scholars.
Of course, deciding a case on that basis violates his pledge to "call balls and strikes" as he sees them, not as he wishes them to be.
FWIW, the best speculation I've seen is that Roberts switched owing to the refusal by teh "majority" to back off their view that the whole ACA had to fall if the mandate went down.
The fact that the "dissent" addressed this issue at all is further proof that the dissent was once the majority opinion.
Posted by: anon | June 29, 2012 at 03:31 PM
Anon,
You say that "The 'pressure' on Roberts seems to be his own sense that the reaction to overturning the ACA would discredit the court in the eyes of legal scholars." What's that based on? If true, that suggests that legal scholars have a lot more influence than we're used to believing they have, particularly with Roberts.
Posted by: Alfred Brophy | June 29, 2012 at 04:21 PM
Alfred:
Yes, I would tend to agree that political spin, led by the President, to discredit a "political" or "partisan" court (see, e.g., Citizens United) would be a more likely source of pressure on Roberts that he might have sought to avoid. The heat associated with overturning teh President's signature accomplishment was quite likely. Could Roberts reasonably anticipate attacks on teh Court? Of course. Would he care? I think so, especially after several polls were announced, on the eve of the decision, noting that the prestige of teh Supreme Court has tanked in recent years.
But, such attacks are less effective without "objective" support, and that comes from legal scholars who purport to know what is right and wrong.
I had in mind, specifically, a piece by J. Rosen that recently appeared in teh New Republic. In that piece, Rosen appealed to the Chief Justice to consider his institutional interest.
Is it implausible that Roberts would consider these arguments (and, of course, teh many others who said the same thing)? I think not. Roberts basically said, in his confirmation hearings, that he considered the standing of his court to be very important, and that he would therefore seek consensus, etc.
Posted by: anon | June 29, 2012 at 04:31 PM
Anon,
Ok. This isn't now primarily about the views of "legal scholars." What you're now saying is that Roberts was concerned with the Supreme Court as an institution. I speculated yesterday that may have been important -- wouldn't surprise me if it was. The reputation of the Supreme Court probably ought to matter to the Chief Justice.
Moving beyond the question of whether some law professors caused Roberts to change his opinion (a doubtful proposition in my mind), do you think that institutional concerns are illegitimate to consider?
Posted by: Alfred Brophy | June 29, 2012 at 04:53 PM
Yes. In the main I do.
I believe a Justice of the Supreme Court should, under Article III, decide cases and controversies on the merits. Just as Roberts said he would, without fear or favor.
Of course, in cases that come before the Court, the "merits" are murky. Listening to the voices of scholars and critics (always present, no matter what the decision) is legitimate,in my view, if it helps to understand the merits.
But, paying attention to polls about the Court's prestige would be sort of unethical, if you ask me. If polled, would legal scholars affirm a belief that the public understands the legal "merits" of arguments about the ACA? Outrage about overturning the President's signature accomplishment would have ensued, no doubt, had the Court taken that step. But would that outrage be based on a deep understandng of the taxing power v. the Commerce Clause? If not, then paying attention to perceived or anticipated public perception is problematic, if not wrong-headed.
Worse still, it seems to me, would be deciding a case becuase you fear a President fomenting disrespect for the Court (the "switch in time"). We should be able to agree that deciding a case based on teh political interests of a "litigant" (albeit not a party per se) in the case isn't a particulary ethical or valid exercise of vast judicial power.
So what are these "institutional concerns"? These concerns should be about integrity, not public perception.
The Supreme Court is now, thanks to public perception, formed into parties, "teams," just like just about every other aspect of our modern political system. This perception is fomented not only in the popular press but by legal "scholars" who take sides based on politics, not the merits. It is for this reason that the institutional interest of teh Court suffers, but I'm not sure tailoring an opinion to reach a different result is the way to fix that problem.
So, come to this case in point. Did Justice Roberts tailor what was his agreement with what is now the dissent into a majority opinion by finding that the ACA turned on the taxing authority?
Again, in my view and the view of others, the present "dissent" was once teh majority opinion.
The present "dissent" is particularly cogent in its critique of the "taxing power" rationale.
If I am correct, Justice Roberts agreed with what is now the dissent, but then broke with the others on the severability issue. THe reason: his perception that invalidating the entire statute would be successfully attacked as judicial overreach based on partisan politics.
IF the latter assertion is true, and I concede I can't prove it, would could we agree that Robert's "institutional concerns" should not have formed the basis for a switched vote?
Posted by: anon | June 29, 2012 at 05:38 PM
Anon,
So much to take up here; threads going in all sorts of directions. First, much of your response assumes things that we just don't have any evidence for. Such as this statement: "Worse still, it seems to me, would be deciding a case because you fear a President fomenting disrespect for the Court (the "switch in time")." Where's the evidence that Roberts did this?
Trying to distill some of our points of disagreement down ... if the Supreme Court had found ACA unconstitutional I think many people would have found this to be an overreaching. I would agree with them; I take it you do not. I'm guessing you're also a lawyer, perhaps also a law professor. That just goes to show -- as you say -- that the merits in this case are murky.
I suppose one of our disagreements goes to the nature of constitutional law. I don't know as there is one "correct" interpretation of the Constitution; what is constitutional is determined in part of text, in part by how the text has been interpreted, in part I should think by what Congress thinks. This has certainly been how constitutional law has been treated through our country's history. It is a result of generations of evolution in the Courts, Congress, the executive, and, even thinking outside of those branches. Moreover, there's good reason for our tradition of deference to Congressional action. In certain, rare instances it's important and appropriate to overturn Congressional action, but that should be done only in extraordinary cases.
But I'd go beyond this and say that I think it's important for the Court -- and other government actors -- to cultivate the respect of the public. Part of the reason I think the Court has declined in respect in recent years has been, I suspect, the perception that it's been acting in partisan ways. And maybe that reflects reality, even if people on the street don't know the intricacies of the commerce clause, the taxing power, or the necessary and proper clause.
I'm not going to speculate on your last point; I seriously doubt that Roberts changed his interpretation solely based on his sense that his court would be portrayed as overreaching. From what I can intuit about him there are more dimensions to his reasoning than that. Though it wouldn't surprise me to learn that he was influenced in some way by concern that striking it down would be viewed as partisan. I'd like to think that judges care about the legitimacy of their Courts. I think that's probably an important constraint on behavior.
Thanks for taking the time to comment.
Posted by: Alfred Brophy | June 29, 2012 at 07:28 PM
I agree with you, Al. This is going in all directions. The notion that Roberts was "pressured" implies that there was some strong weapon that was wielded against him-- something illegitimate beyond just using persuasive arguments, which is what lawyers are supposed to do. And the timing. If the pressure started a while back, why would there have to be "last minute" switch. He could have changed his mind over the course of the past few weeks. Maybe there was some movie-like down to the wire story that Bob Woodward will write about some day. I suppose we will find out. There's an intriguing piece over on Balkinization about Roberts's mentor Henry Friendly's views on the appropriateness of using the tax power as a basis for social legislation. If I recall, Roberts also seemed amenable to the idea during the oral argument.
Posted by: AGR | June 29, 2012 at 11:19 PM
I think there are some signs within the opinion itself that CJ Robers was hoping to get Justice Kennedy's vote so this wouldn't look as odd as it does and drafted the opinion accordingly. I also see some signs that he toned down Justice Scalia's rhetoric in the dissent. Whatever that may mean.
http://lawprofessors.typepad.com/healthlawprof_blog/2012/06/teaching-constitutional-issues-in-the-aca-decision-part-1-a-look-behind-the-curtain-to-find-some-of-.html
Posted by: Jennifer Bard | June 30, 2012 at 03:42 PM
Ah ... just tuning back in.
Al, if I understand your response, "legal scholars have a lot (less) influence than {I have asserted} ... particularly with Roberts."
But, you say, Roberts may be rightly concerned about "public opinion."
So, if I understand your point, I am wrong to chastise the Chief for considering scholarly opinion, but right to say that the Chief may have sought to "cultivate the respect of the public" (even if there is no "evidence" of this.)
You say "It wouldn't surprise me to learn that he was influenced in some way by concern that striking it down would be viewed as partisan." But then you seem to say that the President gave no reason to believe that he would foment that view.
I think these are the threads "going in all directions" in your responses.
My point was simply that concern about public opinion would have meant no Brown v. Board, no Roe v. Wade, etc. I think, to be principled, one must call the cases as one sees them, even if reasonable minds might differ.
Respect for the Court will be earned in this, no matter how much partisans seek to put on everyone a label in order to attack "the other side."
The worst form of scholarly opinion is evidenced by the cries that the COmmerce Clause argument was frivilous. The majority opinion speaks volumes about the that conclusion.
Can't we ever get past the notion that Roberts was "right" if he went "left" to please the public?
The power to tax was, as many believe, a pretense to switch.
And, as for the timing of that switch, saying that it was "last minute" is a straw man. This thread started with the rumor that the switch occurred sometime ago, likely in May. Reading what follows the unusual "***" in teh dissent tells the tale quite clearly, in my view.
Posted by: anon | July 01, 2012 at 01:54 PM
And here, is some "evidence" ... a credible reporter with sources inside the Court.
http://www.cbsnews.com/8301-3460_162-57464549/roberts-switched-views-to-uphold-health-care-law/?pageNum=2&tag=contentMain;contentBody
It seems all the poo poo'ing about influence (including the influence of legal scholars and experts) has been sort of misplaced, just as was the crying of foul, by many of the same voices, when the Commerce Clause was raised.
The accuracy rate of the dismissive opinions so often heard in legal academia should give some reason to pause, and perhaps try to be a bit less dogmatic and partisan:
But, I bet it won't.
The reason we must shudder is that, as this piece confirms, Roberts pays attention to such opinions.
That is a bad thing, in my view. I don't mind that Roberts cast a vote for an argument not shared by any of the lower courts that previously considered the ACA, but I do mind that he did so for ulterior, non-germane reasons: like "public opinion" about "his" court ... The latter rationale violates his oath, in my view, to rule on the facts and the law.
Posted by: anon | July 01, 2012 at 05:47 PM
Hi Anon,
So let me get this straight: not a week after the experts -- in the media, among the Supreme Court bar, and in the academy (though you'll recall that some of us predicted that the mandate would be upheld) -- missed the boat on predictions of what the court would do they're already telling us, again, what must have happened. I would have thought that recent failures would give us all some humility about predictions and statements of "fact." And make us skeptical of reports of what happened. That was my first point of this post. Also, as to my second point in the post, assuming that report is correct, so much for the leak-proof Supreme Court.
Lots of other things to talk about here. I disagree with your point on Brown. In fact, I think that the Court was influenced by the growing sense by many opinion leaders that the idea of equality demanded an end to segregation.
But, those are ancillary. Our major point of disagreement is the same one we had on Friday. You're bothered by Roberts' supposed concern for the court as an institution and for how and whether the public respects it. I, quite frankly, am on the other side of this divide. I'm glad when people who have life appointments make some attempt to take into consideration the world around them. Please incorporate by reference my response from Friday, especially my guess that Roberts took a series of factors into account in deciding that the ACA was constitutional.
Posted by: Alfred Brophy | July 01, 2012 at 06:31 PM
Al: Thank you for your response. I do think you have distilled the main point of our disagreement.
Perhaps we can forgive the public for simply concluding that the Supreme Court is “partisan” because the outcome was contrary to a politician’s or a cable news anchor’s advocacy, but how can we, as scholars think that its "ok" to base supremely important judicial decisions on public opinion (“reputation” as you put it)?
The reason I said originally that I think Roberts pays attention to scholarly opinion of “his” Court is that scholarly opinion leads, in many important respects, the media filterers who tell the public what the Court’s “reputation” is. The CBS piece tends to confirm the Roberts is listening. Moreover, as you repeatedly say that it is right and proper to take the “reputation” of the Court into account, I don’t understand any reason you should question whether this is true or not. So, I don’t think we can find the gist of our disagreement on the issue of Roberts attention to the “reputation” of his Court, aka, scholarly and public opinion.
I assert that the Chief was influenced by the concerns that public opinion would be swayed by the President and many legal scholars eager to discredit “his” court should the ACA fall. Is there any evidence of this? Well, yes, there is plenty of evidence that Roberts could anticipate a forceful attack on the Court.
Let’s start with President helping the public to perceive the Court in a negative way regarding Citizens United by berating the Justices at his State of the Union address. Then let’s consider the President's remarks in the Rose Garden in April about how overturning a proper law (the ACA), which he claimed was enacted by “strong majorities,” would be "unprecedented." (I won’t comment on the inaccuracy of the description about how the ACA passed, but one in Robert’s position would likely need to consider the fact that these facts were spun in the way they were spun when deciding how the “reputation” of the Court might be challenged or affected should the ACA go down.)
So, now we come to the point. How can we say it would be "ok" for the Chief to switch his vote to overturn the mandate, not on principled grounds but because he thought upholding it to be “strategic” and in the interest of preserving the “reputation” of the Court. (Concomitantly, how could we say its “ok” to hold that the mandate violates the Commerce Clause, if one does not believe it, in order to get to a majority that saves the ACA? (Praise is owed to J. Ginsburg! )
I don't think caring about evaluations of the Court justifies a vote when you don’t think that vote is the right decision based on the facts and law.
And there is where we I believe disagree. I don’t think J. Roberts thought the tax rationale a persuasive reason to uphold the ACA. I think he used that rationale as a cover for upholding the ACA for political reasons.
If I am correct, and many agree with what I am saying here: Where are all those to decry “partisanship” (defined as “political leanings”) now that the case went “their way”?
Posted by: anon | July 01, 2012 at 07:54 PM
ONe postscript:
How will a Justice let us know when she considered public opinion as one of a series of factors into account in deciding that a statute was constitutional?
Opinions are designed to teach us the rationale of the Court, so that we can guide our actions accordingly.
Perhaps:
"I have decided that the taxing power of the United States, a marginal argument not accepted by any court below, should be adopted by me as the rule in this case. Should I do otherwise, Rachel Maddow may think less of me and tell everyone I'm a partisan. I may be thought of just like Scalia! This would be unacceptable. I've been reading the polls, and I've decided to take into account the reputation of my Court with the public. I've so decided, based on 'evidence' of popular opinion, not in the record to be sure and not known in anything more than a fleeting sense. I realize that 'public opinion' doesn't really exist in any real sense, but, my reputation is at stake."
Posted by: anon | July 02, 2012 at 12:16 AM