Reactions To The Health Care Decision

Members of the Supreme Court may be relaxing a bit now that the term is over and the blockbuster health care decision is behind them.  The way the decision has turned out brought forth some interesting commentary.   The most provocative piece is one that appears on the CBS News web site which describes how Chief Justice Roberts switched his vote to uphold the individual mandate after initially siding with conservatives on the Court to strike it down.  Chief Justice Roberts is described as concerned about the image of the Court and his own legacy.  Even more interesting is the unprecedented level of detail in the piece of the Justices lobbying each other.  Someone in the know at the Court is talking, apparently, which is surprising given the Court’s secretive nature in coming to its decisions.

There were clues in the opinions that something was up.  The fact that the dissenting opinion was attributed jointly to Justices Scalia, Kennedy, Thomas, and Alito suggests that it was meant as a signed majority opinion.  It also refers at various times to Justice Ginsburg’s dissent (See the joint dissent beginning at page 13).  She filed an opinion concurring in part and dissenting in part and concurring in the judgment of the Court.  The various references to her opinion in the joint dissent suggest that it was initially the dissenting view of four Justices on the short side of a 5-4 decision.  Speculation isn’t proof of anything, of course.  The way the opinions read, however, are consistent with the CBS article’s view that Chief Justice Roberts did switch positions midway in the decision process with internal pressure to get him to side with the conservative Justices. 

Some of the reactions to the decision are worth noting.  Tri States Public Radio, a part of NPR, has rounded up the reaction to the decision by well-known constitutional scholars.  Fox News takes a uniquely balanced view of the decision, even quoting “liberal scholar” Erwin Chemerinsky  on how Justice Roberts took back the Court from Justice Kennedy with this decision.  The worst term Fox uses to describe the Chief Justice is “pragmatic.”  Not so with Larry Klayman of Judicial Watch.  He is outraged at the decision and even more outraged that the Chief Justice did not disqualify Justice Kagan from participating in the case.  He intends to empanel a “citizen’s grand jury” to bring an indictment against Chief Justice Roberts and Justice Kagan for violating ethics and their oath of office.  His statement reads:

Chief Justice Roberts and his colleague must now be held to account to the American people. By refusing to disqualify Kagan and then writing the majority opinion which upholds the unconstitutional violation of the freedoms the Constitution grants to We the People, Roberts and Kagan have violated their oath of office and must be subject to possible indictment by a Citizens Grand Jury. Ironically, the Court has previously held that the grand jury belongs to the people, and not the other three branches of government. Following established grand jury procedures, I will empanel a grand jury in Florida and seek the indictment of Chief Justice Roberts and Kagan. The Framers of our Constitution created the Citizens Grand Jury for the people as found in the 5th Amendment.  By so doing, they created a legal mechanism to hold corrupt judges and politicians accountable under our criminal laws, thereby hoping to avoid another revolution as occurred in 1776.

I’m guessing that now would be a good time to buy stock in aluminum foil headgear.

The best reaction comes from Stephen Colbert.  He reported that The Court upheld Romneycare.  He also said that Mitt Romney was so humble that he probably wouldn’t take credit for his role in the health care legislation.  The video is here.  [MG]