Did Roberts bend under peer pressure?

Neil Munro White House Correspondent
Font Size:

Legal experts say there’s some evidence that Chief Justice John Roberts switched his vote and supported President Barack Obama’s health sector law amid intense pressure from progressive lawyers, lobbyists and advocates.

If Roberts switched, it marks another back-room victory for the progressive legal establishment, which dominates the law schools and many of the progressive and liberal law firms that are paid to present arguments to the Supreme Court.

Progressives gain status and profit from expanded judicial power and from flexible constitutional rules, because they gain the ability to use the Supreme Court to trump voters’ and legislators’ decisions.

Much of the evidence for a Robert surrender consists of language in the so-called “dissent” written by the minority of four conservative judges.

The dissent includes language referring to the majority opinion as the “dissent.”

That “dissent” term is normally applied only to the minority’s explanation of their votes.

The likeliest explanation for the mismatched terminology is that Roberts initially joined the group of four conservative judges who wished to strike down the law. His vote made them the majority, and allowed them to label the progressives’ opinion as the minority dissent.

However, Roberts later switched sides, and the new minority of four conservative judges did not have time — and the desire — to fix the outdated grammar of their opinion, legal observers theorize.

For example, the four conservative judges’ minority opinion released June 28 says, “the dissent claims that we ‘fai[l] to explain why the individual mandate threatens our constitutional order.’ … But we have done so.”
 The four judges’ opinion also says “the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government.”

In previous hot-button debates, progressives have used the dominant role in the elite legal sector to push other judges into their camp.

In 1992, progressives persuaded Justice Anthony Kennedy to switch his vote and back the court’s 1973 Roe v. Wade decision.

That decision barred voters and legislatures the power to decide compromise over abortion laws.

In the 1992 decision, Planned Parenthood v. Casey, Kennedy rejigged the Roe v. Wade decision to continue excluding voters and legislators by declaring that women have an personal right to autonomy.

Legislators and voters can’t govern abortion because “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” said Kennedy’s decision.

That’s a much broader claim that issued by the Roe v. Wade decision, which shielded abortion by deeming it to be medical matter to be decided by a doctor and patient.

Follow Neil on Twitter