The John Roberts-Anthony Kennedy Smackdown

There are several fascinating details in Jan Crawford’s confirmation that John Roberts did, indeed, flip his vote on ObamaCare.

Most interesting is Crawford’s description of the desperate efforts on the part of Roberts and Anthony Kennedy to persuade the other to flip their vote.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”

I’m also fascinated by Crawford’s oblique description of why this leaked from the normally tight-lipped Court.

The justices are notoriously close-lipped, and their law clerks must agree to keep matters completely confidential.

But in this closely-watched case, word of Roberts’ unusual shift has spread widely within the Court, and is known among law clerks, chambers’ aides and secretaries. It also has stirred the ire of the conservative justices, who believed Roberts was standing with them.

Note, too, that Crawford uses the same word Ramesh Ponnuru used–“wobbly”–to describe Roberts’ position, suggesting he may have had the same sources she did (and the word seems to come from a Justice himself).

It was around this time [in May] that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

Finally, there is Crawford’s not entirely convincing explanation for the relics in the dissent that seem to suggest Roberts had a hand in crafting the dissent, too.

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.

If true, those relics, which violate normal protocol for referring to other opinions, reflect a very big affront to Roberts’ governing opinion.

There’s a lot in Crawford’s story that seems to treat the conservative leakers with too much credibility–not about the law, but about the pissing contest that has ensued. In any case, the very fact that it took just a few days to make it into a story add to the intra-party sniping.

33 replies
  1. Bob Schacht says:

    Of course it is fun to speculate what this decision might mean for the future of the Court. I don’t think that Roberts has become a liberal, by any measure, but I think he saw the influence of Kennedy on being the most likely swing vote on any closely divided issue. And even though he’s a partisan conservative by most measures, I think he was bothered by the perception of the court as rabidly partisan. I think he likes the idea of being the potential swing vote, and likes the idea of making the Court less predictably partisan.

    However, I think he is also getting an earful from the billionaire backers of the Conservative agenda. So, will the Court be less predictably partisan? Will Roberts become the dominant swing voter? Stay tuned!

    Bob in AZ

  2. orionATL says:

    elana kagan is the other politician on the court (with roberts). i haven’t seen anything of her role in the health care vote. i doubt she was not active. she has been playing footsie with the conservatives since she arrived, perhaps the more to gain stature and access.

    on a second matter, i keep thinking of the congressional legislation-writing device of making the mandate a tax and then nullifying that tax by preventing the irs from keeping records or prosecuting violators.

    was this a deliberate effort to provide one or more of the conservative justices with a rational for supporting the bill? i can’t think what other purpose it would have served.

  3. emptywheel says:

    @orionATL: Well, sure, you saw Kagan vote against Medicaid. That’s huge, and may be part of halving how many people this law helps.

    Even if we hear that she and Breyer traded that for Roberts on the mandate, it’s still worth wondering whether chipping away at one of the better aspects of the law in exchange for saving one of the crappier aspects is worth it.

  4. emptywheel says:

    @emptywheel: I should say, it’s more likely the Medicaid vote will cut the number of people covered by ObamaCare by a third, at most. Still, a ton of people, and those who need it most.

  5. MadDog says:

    I won’t bother anyone with links to the wingnut “breathing without air” blogosphere, but the consensus is pretty simple (as if that in and of itself was a surprise):

    “Roberts is a fookin’ traitor!”

  6. MadDog says:

    “…I’m also fascinated by Crawford’s oblique description of why this leaked from the normally tight-lipped Court…”

    I would add a further thought. It would seem that the leak was done deliberately with political malice aforethought. By members of the wingnut wing of SCOTUS.

    The plain intent is to fuel the base’s Obama Derangement Syndrome and add energy to their GOTV efforts.

    That Jan Crawford of CBS was chosen as the vehicle to deliver the leak was also deliberate. CBS still maintains an aura of being major media in the minds of the media elite, and that when CBS speaks, it must be true (in wingnuttia, Dan Rather on Dubya’s military service aside).

  7. bmaz says:

    I doubt it was any one factor that led Roberts down this path. Corporatism, sure. Political pressure as to “legacy” and “reputation” of the court; clearly. Cover for the Medicaid limitation, yep. And I will note that I think all the caterwauling about the Commerce Clause portion of the decision being some life altering deal is just nonsense. First off it is dicta; secondly, it does nothing to curb the social benefit programs we have had to date. The Medicaid limitation, however, could have far reaching consequences for the interaction between Federal and state governments.

    And one Marcy has noted previously, there are some useful smaller parts contained in the overall ACA, things that a guy like Roberts with affected children, probably actually does think about. Add all that up, and there were a lot of forces on Roberts. That, plus a look at what Scalia, Kennedy, Alito and Thomas (SKAT) had in mind, which had a whole lot of ugly about it, I think, put him where he is now. Not one factor, but all of it.

  8. bmaz says:

    @MadDog: There are only a few real media people that would be gone too. Jan Crawford Greenburg, Linda Greenhouse, Jeff Toobin, Nina Totenberg and Joan Biscupik. Crawford is the, by far, most conservative of all of them. She is a natural path for this.

  9. MadDog says:

    @bmaz: I agree. The rest of the court media luminaries you mention don’t hold a conservative candle to Crawford.

    There is no way Linda Greenhouse and the NYT were going to get this scoop.

  10. Phil Perspective says:

    @bmaz: Exactly. Crawford has a history of spewing Federalist Society(and wingnut) talking points. So, if Crawford is correct, who leaked? It’s obviously, to me, Clarence Thomas or Fat Tony.

  11. emptywheel says:

    @Phil Perspective: Though I think she also made a fairly decent explanation of why Kennedy wasn’t going to join Roberts. In fact, while I’d normally think this leak came from Scalia or Thomas, I do wonder whether Kennedy didn’t do it.

  12. MadDog says:

    @emptywheel: I’m leaning to Kennedy myself. I’d expect more of a vituperative telling from Scalia or Thomas. Perhaps Alito played second fiddle?

  13. JTM says:

    @bmaz: I agree that the Medicaid part of the decision is quite something and possibly not recognized as such. By my reading, it almost comes across as limiting the federal gov’t’s ability to make any changes to an existing program, assuming the program involves the states.

    Relatedly, in the few half-way intelligent discussions of this in Iowa, an interesting “trap” has been found. If Branstad does what he’s supposed to and starts to set up an exchange, he’ll be seen as “collaborating” with Obama. But if he doesn’t get something done by Jan 1, then the federal gov’t will step in and that would be “worse.” I’m actually enjoying this part.

  14. MadDog says:

    @bmaz: Yeah, but the information leaked would have sounded much more incoherent.

    While the stuff Crawford got was definitely in opposition to Robert’s ruling, it was much more temperate than something one would expect from Judges Scalia or Thomas, and certainly nothing like cloud-cuckoo land from Ginny.

  15. MadDog says:

    @MadDog: At least one’s eyeballs won’t explode in visiting David Frum’s piece though heading over to the Byron York piece that he links to might do it:

    The Fever That Won’t Break

    “Byron York has an important report on the mood of conservatives in the wake of the Supreme Court healthcare decision:

    “…on Saturday afternoon, I sent out a couple of tweets in which I said: “My sense is that conservatives are getting angrier, not calmer, about Roberts opinion. Shocked/confused on Thursday. Angry of Friday. Really angry on Saturday. Unhappiness trending up, not down.” The tweets sparked an outpouring of impassioned responses…”

    Regardless of Chief Justice Robert’s motivations for his decision, let there be no doubt in anyone’s mind that it, and now this Crawford backstory about how it changed, has ignited wingnut swamp fever.

    And there is no known cure.

  16. bmaz says:

    @MadDog: And, on the flip side, but for the nonsensical caterwauling that the Commerce Clause is going to doom future social welfare projects, the liberal backers of the President and ACA are just happy as pigs in shit. Even though they got their precious program by one of the more bastardized decisions and processes in SCOTUS in memory of anybody still alive on the planet.

  17. MadDog says:

    @bmaz: It seems like neither side is willing to put down their bong long enough to come up for air.

    I do foresee at least one good thing happening though: Munchie franchise growth! Time to invest in Cracker Jacks again? Perhaps Skittles?

  18. Morris Minor says:

    I agree with killing the Medicaid provision- it was an unfunded mandate. If the feds (who print their own money) tell someone to spend, they can bloody well fork over the readies.

  19. JohnLopresti says:

    Nino aint gonna utter a word like wobbly. not in a duck blind.

    I agree with bmaz about Roberts’ sensibilities with respect to aspects of human health; there was something about that in his pro bono work documented during Frist’s shepeherding phase before the nomination hearing at SJC.

    This was a more visceral negotiation in chambers than the french fry case, as well, which was not about health.

    But someone from GPS501(c)4 might pass along the stratojest’s counsel, ‘not to get too far out on that (healthcare stuff)’. Matt Cooper got that advice only a few years back from the same guy.

    On the commerce dicta issue, the critiques I have perused advise a 10+year wait. I liked the parody that claimed Nino launched a blog called get over it; except it sounded too verisimilar to smile for long.

    We just need better balance on the court. oh, the sad senate reaction to ‘recess appoiontments’ cftc, nlrb. tsk!

  20. The Fake EW says:

    Crawford spends some time defending Kennedy against “unfair attacks,” pointing out his “strength,” outlining his principled reasoning in this case, and praising his historically great opinions. The language in the opinion that she identifies as Kennedy’s is “sweeping,” not radical or extreme or polemical or ranting or ideological or emotional.

    There’s not a word of praise in there for Scalia, Alito, Thomas, or Ginny.

    Maybe someone has a source.

    Or maybe someone has a crush.

    Or maybe both.

    Somebody needs to find out what’s going on up there.

  21. lysias says:

    “Wobbly”? Back in the 1990’s, when Kennedy joined O’Connor and Souter to block overturning Roe v. Wade with a centrist opinion, Kennedy’s own nickname on the Court was “Flipper”.

  22. lysias says:

    So, would Roberts have stuck with his original view if the other four conservatives had been willing to sever the mandate from the rest of the act and not strike down the whole act?

  23. JThomason says:

    If the mandate is unconstitutional as invoking a penalty, then there has been a de facto severance in allowing a tax to move forward.

  24. SpanishInquisition says:

    @Morris Minor: I don’t think people realize the impact of Medicaid in that Obama and the Democrats falsely claimed that Obamacare was paid for, but in reality it wasn’t and instead paying for Obamacare could come out of state pensions. By all means expand Medicaid, but don’t lie and say that it is paid for and instead leave it up to the states to pay for while burying in those hidden costs in false claims.

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