We all know that Obama came out a few months ago after the oral arguments and said that he was “confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected congress.” This despite the fact that it would not be unprecedented (the court has overturned hundreds of federal laws), nor was it passed by a “strong majority” it passed 219 to 212 in the house with all republicans and 34 democrats voting against it. In the senate the democrats couldn’t even get over the filibuster anymore after Scott Brown’s election, so they had to use an old senate version to get it passed in the house.
But Obama wasn’t alone in this attack, even before it was released Washington Post columnist Kathleen Parker noted the attempt to “intimidate the chief justice of the United States, implying ruin and ridicule should he fail to vote in a pivotal case according to the ruling political party’s wishes…. This not-so-stealth campaign to influence the Supreme Court is obnoxious, if not unethical.”
But now we learn that the public attack on the Supreme Court was successful. There are several people that have noted that the decent is unsigned by any specific justice (usually the justice that writes the dissent is named, and the rest join the dissent). That the dissent has a whole section on severability which wouldn’t matter at all if it was a standard dissent and not at one time the majority opinion. Also the response to Roberts majority opinion occurs right at the end rather then spread out throughout the dissent as is usual. Also the dissent refers to “we” as if it was the majority opinion unlike a usual dissent would. So some people believed that Roberts wrote the dissent and then change his vote at some time.
New eye witness accounts by two different sources say that Roberts caved under the unending attacks at delegitimizing the court if they should overturn obamacare. “[A]s Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it…. Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint… It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, ‘wobbly’ ”
Before this inside account, we merely suspected that Roberts switched his vote due to being bullied. Now we have evidence of it.
Now that we know the Supreme Court’s decision was because of political pressure by Obama to delegitimize the court if he didn’t change his mind, does the decision still hold the value of a normal decision of the court? Could this clearly successful political pressure campaign harm the view of the court as an independent judiciary?
This seems very reminiscent of the “switch in time that saved nine”, in which the Supreme Court under tremendous political pressure attempting to delegitimize the court if they didn’t go along, decided to switch to approve legislation that they had just recently said was unconstitutional. This “switch in time” to this day harms the legitimacy of those decisions are harmed as no one really knows to what extent it was just politics. Yet again, we have a “switch in time” by Justice Roberts, in an attempt to prevent the Supreme Court from being attacked. Roberts may have damaged the court’s legitimacy more by caving-in then any decision striking down Obamacare.