JEFFREY TOOBIN’S NEW BOOK - Three months after the Supreme Court handed down its landmark ruling on President Obama's health care law, new details have emerged on Chief Justice John Roberts' controversial vote in favor of upholding the Affordable Care Act.
According to excerpts of a new book by New Yorker writer and CNN legal analyst Jeffrey Toobin published in Politico's Playbook on Saturday, Roberts had originally intended to side with his fellow conservatives on the court and overturn the law. However, Roberts' position turned "wobbly" as he considered the implications the ruling would have on his legacy.
Toobin reports:
Roberts was a conservative and lifelong partisan Republican. … Roberts had dual goals for his tenure as chief justice – to push his own ideological agenda but also to preserve the Court’s place as a respected final arbiter of the nation’s disputes. … A complete nullification of the health care law on the eve of a presidential election would put the Court at the center of the campaign … Democrats, and perhaps Obama himself, would crusade against the Court, eroding its moral if not its legal authority. … Gradually, then with more urgency, Roberts began looking for a way out.
Toobin writes that Roberts became increasingly uncomfortable with overturning the entire law, and instead sought out a "middle ground." He found that middle ground in arguing in his majority opinion that the individual mandate "need not be read to do more than impose a tax," thus falling within Congress' power to collect taxes.
The switch, according to Toobin, "enraged" Justice Antonin Scalia. In recent interviews, Scalia has insisted that there's no bad blood on the court. And, as Toobin points out, Roberts' ruling could come as a boon to conservatives.
[F]or Roberts personally and the conservative cause generally, his vote and opinion in the health care case were acts of strategic genius. … Roberts at a minimum laid down a marker on the scope of the commerce clause. … Roberts’s opinion is potentially a significant long-term gain for the conservative movement. … Roberts bought enormous political space for himself for future rulings. … Did Roberts, by his late switch in the health care case, poison his relations with his conservative allies on the Court? That is very unlikely.
Reports of Roberts' switch were first detailed by CBS News. According to CBS, the conservative wing of the court, including Justice Anthony Kennedy, tried for a month to bring Roberts back on its side.
"The discord is deep and it is personal," CBS' Jan Crawford said of the tension between the justices.
"This could affect this court for a long time."
Toobin's book, "The Oath: The Obama White House and the Supreme Court," will be released on Tuesday.
(Mollie Reilly blogs at huffingtonpost.com where this article was first posted.)
-cw
CityWatch
Vol 10 Issue 75
Pub: Sept 18, 2012
