The Supreme Court: Not Such an Impregnable Fortress Anymore?


Roberts is only 57 years old and he will most likely serve on the court for at least 20-30 years. His perspective as chief is long term.

David G. Leitch, a former clerk of Chief Justice William Rehnquist and now general counsel of Ford Motor Company, takes a historical look at Roberts' role as chief justice.

"Rehnquist spent years articulating his views as an associate justice, but many observers felt that once he became the chief justice he voted differently in some cases than he would have as an associate justice. It's hard to say if that's true, or if it was, why it was true, but certainly one could imagine the leader of an institution such as the court feeling a special obligation to consider institutional interests rather than simply his individual views."


In the health care case Roberts said that the individual mandate could not be upheld under the Commerce Clause of the Constitution, the primary argument put forward by the government to justify the law. He also narrowed the law's expansion of Medicaid.

For these reasons conservative columnist George Will said that even though the law had been upheld, Robert's opinion was a victory for conservatives.

Will said on ABC's THIS WEEK: "It built a fence around the Commerce Clause.Then, on the Medicaid expansion, for the first time in history, a majority of the states banded together to challenge the constitutionality of the legislation and they won. "

But the conservatives on the court were furious when Roberts joined the liberals to uphold the law under the government's second argument: Congress' power to tax.

"The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax," Roberts wrote." Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."

The dissent, by Justices Anthony Kennedy, Antonin Scalia, Samuel Alito and Clarence Thomas was biting. "The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching," Kennedy read from the bench. " It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect."

After the decision was released, conservative Glen Beck advertised t-shirts calling Roberts "coward." Paul Clement, the lawyer hired by the 26 states challenging the law, said after the decision, "If you told people that there were four solid votes to strike down the whole thing, most people would be surprised to find one was Kennedy,"

Looking at the structure of the opinion, court watchers speculated almost immediately that Roberts might have shifted his vote after considerable writing had been done.

Theodore Olson, former solicitor general in the Bush administration, told an audience, "It does not look to me as if this set of opinions started off as a decision upholding" the mandate under Congress' taxing power.


And then, three days after the opinion was released, something almost unprecedented occurred. The Supreme Court-- the branch of government least likely to reveal its secrets --sprung a leak.

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