Roberts riles the right inside and outside the Supreme Court

WASHINGTON — Conservative attacks on Chief JusticeJohn G. Roberts Jr.grew over the weekend in response to mounting suspicions that he may have switched his vote on the healthcare law, voting initially to strike down the individual mandate before concluding it could be upheld as a tax.

Critics on the legal right accused Roberts of bowing to political pressure.

It is far from unprecedented for justices to change their positions after casting their initial votes. And in the healthcare case, the justices were not voting on just one issue, but deciding at least four separate legal questions.

But there is no doubt the court’s conservative justices were surprised by Roberts’ decision to uphold the law, particularly since he agreed with them on nearly all the disputed issues.

The opinions released Thursday contain clues the justices were deeply divided and perhaps uncertain of the outcome. For example, the dissenting opinion of Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. does not criticize the chief justice’s controlling opinion. Instead, it refers to Justice Ruth Bader Ginsburg’s dissent on the individual mandate.

CBS News reported Sunday that two sources with specific knowledge of the deliberations say the chief justice was ready to strike down the insurance mandate at the court’s conference in late March, but he changed his mind. That in turn prompted some critics to accuse Roberts of buckling to political pressure.

“The fact that this decision was apparently political, rather than legal, completely undermines its legitimacy as a precedent,” said Georgetown University law professor Randy Barnett, an architect of the legal attack on the Affordable Care Act.

“If Roberts did indeed succumb to pressure, he should resign,” said Chapman University law professor John Eastman, a former clerk to Thomas.

In his opinion, Roberts said the court had a duty to uphold laws whenever there was a legal basis for doing so.

“Members of this court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments,” he wrote. “Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

On March 30, the justices met behind closed doors to discuss the healthcare case and to cast their votes. The chief justice speaks first at such conferences.

Roberts apparently agreed the insurance mandate could not be upheld as a regulation of commerce, a view echoed by the four other conservatives. He also apparently agreed that the states could not be required to expand the Medicaid program and provide more free healthcare to poor people.

But the court still had to decide two other questions. Could the law’s tax penalties be upheld as an incentive for people to obtain insurance? And if the insurance mandate were declared unconstitutional, must the entire act be voided?

Roberts learned the four conservatives — Scalia, Kennedy, Thomas and Alito — were determined to strike down the entire 900-page law. Their dissent last week derided it as a “Christmas tree” decorated with ornaments. “We think the proper rule must be that when the tree no longer exists, the ornaments are superfluous,” they said.

The four liberal justices — Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — were determined to uphold the insurance mandate as a regulation of commerce. They thought it was radical and extreme to throw out a national regulatory law duly passed by Congress and signed by the president. The court had not struck down such a law since 1936.

But in a partial concession, Breyer and Kagan agreed with Roberts that the states could opt out of the Medicaid expansion if they were willing to forgo the extra federal money.

When the private conference ended, the justices on both sides may have hoped they would prevail. Roberts assigned the majority opinion to himself.

About six weeks later, when Roberts circulated his draft opinion, it became clear he had decided to uphold the law’s tax penalties for those who did not obtain insurance. But he stuck to his view that people could not be forced to buy insurance as a regulation of commerce and that states could not be forced to expand Medicaid. The conservative side had won on the major constitutional issues but lost on the result.

The Roberts opinion apparently set off a fierce fight within the court. Kennedy argued the entire law should be struck down. Roberts hoped Kennedy might join his opinion.

Instead, Thursday’s thick decision was issued as though it spoke for three factions. There were three separate opinions, each about 60 pages long. Ginsburg wrote 61 pages for the liberal side, all but a few paragraphs of which leveled criticism at Roberts. An unusual jointly written dissent for the conservatives spent 65 pages arguing that the entire law should be voided. Also unusual was their refusal to join even the parts of the chief justice’s opinion they agreed with.

Roberts ended up alone but in control, deciding the law could be upheld narrowly.

david.savage@latimes.com