Chief Justice Roberts, Flipped Votes, and the Naked Partisans

Yesterday Barack Obama discovered the one high-rankng Republican in the country who would help him raise taxes: John Roberts.

While the political (how will yesterday’s ruling affect both the Presidential and lower ticket races in November) and pragmatic (what red states will turn down tons of Federal money to provide health care for their poor) consequences of yesterday’s decision are still playing out, I’m quite interested in the Kremlinology over Roberts’ vote.

Because the unsigned dissent on the mandate refers to Justice Ginsburg’s opinion as itself the dissent–and for a slew more reasons–a number of people think that Roberts originally joined the conservatives, but then flipped at a late moment. (See here and here for a discussion of the evidence supporting that argument, see here for an alternative explanation.)

Then there are questions about why Roberts voted, for the first time, with just the liberal block, his first swing vote on one of the highest profile cases of his tenure. Was it to save the respectability of the Court? To gut the commerce clause? To serve his one consistent constituency, corporations?

The answer to those questions, too, are still playing out.

I can’t help but see this in another context. This decision was the last opportunity for SCOTUS to help defeat Barack Obama. They helped mightily with Citizens United and again with their rejection of the Montana campaign finance case. The Court came close to helping on voting rights and redistricting. The Republicans in the Roberts court has done a lot to make sure Obama doesn’t get to pick anymore of their future colleagues.

But yesterday’s decision had a big impact on the the course of this year’s election. Had the Administration lost, I do think they hypothetically could have used the loss as a rallying point, though in practice they have never shown the ability to win this political argument or even try in concerted fashion, so the more likely outcome would have been a setback at the polls. I do think given Mitt’s embrace of the dissent–rejecting insurance for those with pre-existing conditions, among other things–Democrats ought to be able to spin his opposition to great advantage. Yet I also agree with those who argue that neither Obama nor Mitt have an incentive to talk much about healthcare moving forward. Congressional races are another thing altogether, as the GOP will try to run on a promise to overturn ObamaCare.

Alll that said, I’m most struck by the naked partisan face that has emerged in recent days. While the dissent was largely an angry legalistic screed, the decision–to overturn all of ObamaCare–was radical in its intent. Ginsburg’s opinion’s frequent reliance on the Massachusetts example, RomneyCare, was a nice partisan touch. Most all there’s the haunting dissent to the SB 1070 ruling that Scalia read on Monday, using slavery-era law to argue that states could exclude undesirables from their state (to say nothing of Alito’s defense of life in prison for teenagers).

Roberts may be a corporatist, but the other four conservatives are showing far uglier faces of late.

Then there’s this detail. Amanda Terkel noted Jim DeMint saying conservatives had been “teased” into believing SCOTUS would overturn ObamaCare for them, doing as activist judges what even Erick Erickson now accepts must be done by politics.

“Teased”? What does that mean? Was DeMint “teased” with the results before Roberts flipped, if he did? Did DeMint have reason to believe the five conservatives had taken the radical step of overturning all of ObamaCare?

I don’t know the answer to that, but I will say that the dissenters yesterday have clerks and other staffers who, with a half hour’s work, could have hid the most obvious relics of John Roberts’ flip, if that’s what he did. Search and replace: “dissent,” “concurrence.” That is, if indeed Roberts flipped his vote, then it seems likely that the angry Republicans deliberately left evidence that would lead us all to speculate if not conclude he had done so.

SCOTUS doesn’t leak, Jack Goldsmith says, because it doesn’t bring the same political leverage that leaking does for Executive branch employees.

The justices benefit from the reality and mystique of secrecy, and gain nothing from a leak. A justice can frame a case to the public in a written opinion and wins no internal leverage (and likely loses some) from disclosing the disposition of a case prematurely.

[snip]

Emboldened lower level officials become disrespectful of the secrecy system and sometimes disclose classified information to spin an operation in their favor, to settle a bureaucratic score, or to appear important.

Whether or not Jim DeMint learned how the Court voted some time ago, if it’s true Roberts flipped his vote, then it seems likely the other conservatives–the ones serving an even uglier partisan ideology than Roberts’ raw corporatism–believe they benefit from making that known now, after the fact.

They delivered their side of the bargain, the clues in the dissent show. And they seem to want that known.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

28 replies
  1. Phil Perspective says:

    The other four are just pure partisan. Remember, the Chamber of Commerce didn’t take a stand in this case, rare I know. Roberts’ corporatism makes sense. Should more people have seen that coming? Yes.

  2. neil says:

    It may also be simple sloppiness. Alito’s dissent in the child-sentencing case references Roper v. Simmons, about “murderers like Donald Roper, who committed a brutal thrill-killing just nine months shy of his 18th birthday.” Except Simmons was the murderer, and Roper his jailor.

    If Scalia wrote his dissent as the majority opinion and later lost majority backing, would he really have that much incentive to revise it thoroughly? It’s not nearly as important that a dissent be perfectly correct as a binding legal decision.

  3. Phoenix Woman says:

    Speaking of, ahem, naked partisanship —

    Guess what? The establishment mass media in the US is finally deigning to notice the Adelson Macau casino prostitution scandal, five months after it first broke:

    http://online.wsj.com/article/SB10001424052702303561504577495122922619572.html

    Here’s a Tikkun Olam piece from January 27 on the affair:

    http://www.richardsilverstein.com/tikun_olam/2012/01/27/adelson-casino-empire-investigated-for-mob-ties-prostitution-2/

    Now, Adelson, as much as his money and media reach are loved by Likud and the Ultra-Orthodox folk, has been held somewhat at arm’s length by them for many years because of the fact that his fortune is built on gambling, which is frowned upon by Orthodox Jewish authorities. He cannot build any casinos on Israeli soil, one of the few times he’s been made to take “no” for an answer without retaliating. If the prostitution story has legs, it may well cause some more efforts by the Orthodox to put some daylight between themselves and Adelson — efforts which may well cause him to freak out in public.

  4. orionATL says:

    roberts is a politician, as it happens, of the court. his political skills and strategies within the court have been on display long before this case.

    he is also, i believe, far more analytical (that’s not necessarily good for the nation) than the others of the five mitered justices.

    finally, bmaz’s criticism of the blather and hysterical cries of fear from some democrats and obama supporters was well earned. i disagree, however, that any of these folk should be termed “leftists”. there are no leftist in this country at present, and damned few true liberals.

    further, it is not a “leftist” position to state that the failure of the world’s richest country to provide competent health care for all its citizens, especially for all of its children, is morally unconscionable and economically disastrous. that is just evident fact, not “leftist” political opinion.

  5. William Ockham says:

    I’ve been waaay too busy with other things to follow this closely, but at first glance, I’d say it looks like Roberts wrote both his opinion and most of the unsigned dissent. I know that sounds bizarre, but think about it. If Roberts started out on the “mandate is unconstitutional” side, surely he assigns himself the opinion. He would definitely want to write an opinion that the five conservatives could agree on. With something that big, he doesn’t want a mess of concurring opinions, just look what was happening on the Medicaid side. So, he makes the opinion more and more radical to appeal to Scalito and Thomas until he gets to the point where he realizes he doesn’t want this to be his signature opinion (which it surely would have been). At the last minute, he punts it over to the other four and tries to write an opinion for the liberal side, but Ginsburg is having none of it.

    Just some idle, uninformed speculation.

  6. orionATL says:

    @Phoenix Woman:

    “it may well cause some more efforts by the Orthodox to put some daylight between themselves and Adelson”

    “to put some daylight between…”, surely, pw, you’re not suggesting, ahem, a liaison :))

  7. Kathleen says:

    EW “I do think they hypothetically could have used the loss as a rallying point, though in practice they have never shown the ability to win this political argument or even try in concerted fashion, so the more likely outcome would have been a setback at the polls.”

    “hypothetically could” Such a long shot.

    I am with Howard Fineman on this one. If the decision had gone the other way it would have likely sunk Obama’s ship
    http://www.msnbc.msn.com/id/3036697/ns/msnbc_tv-hardball_with_chris_matthews/
    “Effects of health care ruling on Capitol hill, general election”

    Howard

  8. BSbafflesbrains says:

    Whatever motive you assign to Robert’s opinion it was not as an “interpreter of the Constitution” it was as a tool of the 1%. OWS has been the only check on their push to dismantle the social safety net and consolidate wealth and power.

  9. TarheelDem says:

    There is one important reason that I think that conservatives might want any Roberts flip known is to ensure Justice Thomas’s wife’s continued employment. Or was there kabuki there in Thomas’s not breaking for the insurance companies?

  10. Z says:

    Maybe Scalia is pissed off about the whole thing and may have had something to do with his incorrect references in his opinion to the minority making its way through editing. Who knows, maybe he’ll even quit over Roberts’ change. Doubtful, but if I could get 100-1 odds on him stepping down over the next year I’d put some money down on it. He could have wanted the people to know what happened: that Roberts changed his vote, and had it left in there to do that and also to send a ‘pre-fuck you’ to Roberts … along with his railing against the Obama Administration in a recent ruling … before he walks away.

    Scalia has quite an ego mind you. This may have been his majority decision to write. This may have been his stage on a major case and Roberts may have stolen it from Scalia at the last minute by changing his vote.

    And Roberts did use a results-oriented “threading the needle” type of argument to justify his decision. Scalia is very good at deconstructing arguments. IF Scalia knew that Roberts changed his vote once Roberts knew that ACA was going to be overturned 5-4 and Scalia doesn’t respect Roberts reasoning for his change of face it would gall Scalia. Scalia is less of a corporate tool than Roberts and Alito.

    Hell, it would make great theatre: Scalia going out with some ego-enrichening, self-righteous indignation … going out loud and proud as a conservative hero riding off into the sunset with his head held high. And if and when he wanted to make some seven figure money from home … and write about his favorite subject … he could pen an autobiography and market the entire book around a couple of cryptic paragraphs he includes in it on why he left the Supreme Court shortly after the ACA decision.

    The funny thing is, is if that happened and Scalia believed that Roberts changed his vote simply to change the outcome, he’d probably think it was due to some perceived pressure from the Obama Administration and probably never seriously consider the possibility that it may have been to please corporate interests more than the White House’s.

    Z

  11. BSbafflesbrains says:

    @Z: As an American citizen that values the ideals the Constitution sets forth all you can hope for from this Court is “good theater”.

  12. JTM says:

    As to the idea that SCOTUS doesn’t leak… So many things change when an empire is in decline. On the way up and while sitting at the top, the precedents that got you there are revered and maintained. When you’re on the way down, you flail around wildly, looking for anything to slow your fall. And, while flailing, all precedents mean little to nothing.

    Short version: Scalia told one of his buddies is my bet. And, assuming that’s correct, the private embarrassment he is suffering will feed my schadenfreude for months to come.

  13. sOLbus says:

    I don’t see it as a flip. I see him as moving back to the authentic, as far as his libertarianism goes, embedded in his personal faith.

    “Thus they who of late were extolled as our greatest deliverers, and had the people wholly at their devotion, by so discharging their trust as we see, did not only weaken and unfit themselves to be dispensers of what liberty they pretended, but unfitted also the people, now grown worse and more disordinate, to receive or to digest any liberty at all. For stories teach us, that liberty sought out of season, in a corrupt and degenerate age, brought Rome itself to a farther slavery: for liberty hath a sharp and double edge, fit only to be handled by just and virtuous men; to bad and dissolute, it becomes a mischief unwieldy in their own hands: neither is it completely given, but by them who have the happy skill to know what is grievance and unjust to a people, and how to remove it wisely; what good laws are wanting, and how to frame them substantially, that good men may enjoy the freedom which they merit, and the bad the curb which they need.

    –John Milton, The History of England, From the First Traditional Beginning, Continued to the Norman Conquest:—collected Out of the Ancientest and Best Authors Thereof, bk. iii (1670)

    It’s all there. In the Milton.

  14. rosalind says:

    curious how Roberts will react to being the personal recipient of the Right Wing rage-a-thon. One thing to be intellectually aware of the phenom, but it must have an impact on him and his family to experience it up close.

  15. Snarki, child of Loki says:

    ” I will say that the dissenters yesterday have clerks and other staffers who, with a half hour’s work, could have hid the most obvious relics of John Roberts’ flip, if that’s what he did. Search and replace: “dissent,” “concurrence.” “

    Search/replace doesn’t work for incoherent spittle-flecked screeds scrawled on butcher’s paper with a purple crayon.

    Scalia sure is acting like he’s gone “full wingnut”, so it would be irresponsible not to speculate.

  16. What Constitution? says:

    @sOLbus: Shoot, and here I thought Bush/Cheney/Rumsfeld (and those following after them upon seeing it can be made to work, such as Obama) were some kind of sui generis bad guys. But no, apparently Milton detected and pegged the same characteristics. Whattya know.

  17. Brian says:

    The dissent was not unsigned. It was signed Scalia, Kennedy, Thomas, Alito. The four shared credit of authorship. This happens, sometimes, but not often. The main opinion in Planned Parenthood v. Casey (1992) was O’Connor, Kennedy & Souter: The three shared authorship of that partly majority (where joined by other justices) & partly plurality opinion.

  18. Bay State Librul says:

    In my opinion, the best leak was from Scalia, the day before the decision was read.
    He was testy, arrogant, and spiteful (see AJ Dionne), he knew the results, and tantrumed his temper.

  19. bmaz says:

    I don’t know if Roberts “flipped” or not, and neither does anybody else. That said, Marcy is right, the “Kremlinology” of it is strangely fascinating. At this point, I would give about equal weight to Orin Kerr’s explanation as to flipped. We will find out someday though. If I had to guess, I would probably guess there was no flipping but that the four in the conservative bloc were steadfast, as were the four in the liberal bloc, and the conservative thought they were going to convince Roberts. Indeed they did on the Commerce Clause consideration.

    DeMint is an idiot. I don’t believe he had any “leak” and I am extremely dubious that anybody else did either. He may have thought he did, but he didn’t. My guess is the big “leak” was simply DC insiders who were convinced they “knew” what was going to come down after hearing the oral arguments and seeing the reporting.

  20. JohnLopresti says:

    Chary of many a night’s meditation on the visions penned by author Milton, I respectfully take exception to an assessment which places CJ JGRobertsJr within the Venn scope of a miltonian dialectic.

    There was one professional blog which attracted my fancy after the opinion was published Friday; namely, that of professor Witt at Yale, whose remarks traced a young law graduate Roberts’ clerking heritage back to justice Brandeis, even mentioning justice Hand, as well as judge Friendly.

    Having worked in environmental law somewhat, it was that aspect of Roberts’ adroit rebalancing of aca that concerned me initially in its advancing of the ongoing “conservative” gambit to end environmental protections rooted in the commerce philosophies in US law.

    However, for laughs after one arduous week, I appreciated what I perceived as professor Jbalkin’s feigned frivolity in a comment he wrote presaging some distant future basis for challenging the Solomon amendment as viewed thru Roberts’ focus in the recently promulgated aca opinion friday. This all may be beyond my ken, as I have no recollection of congress’ having worked successfully and thoroughly to eliminate the quid pro quo in university research grantmaking, a topic obliquely germane to the Solomon controversy.

  21. sOLbus says:

    @JohnLopresti:

    Then you must be familiar with Milton’s texts on public degeneracy and babble. I’m fairly certain I saw it in his “THE READY AND EASY WAY TO ESTABLISH A FREE COMMONWEALTH” – where he early mentions those whom disturb all councils, “judging that most voices ought not to always prevail.”

  22. JohnLopresti says:

    @sOLbus: Difficult topics, addressed among cognoscenti who variously contributed to some US founding documents.

    Tho’ I liked Milton on ‘refulgence’.

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