Supreme Court Chief Justice John Roberts voted to uphold “Obamacare” not only because he believed the law’s individual mandate is constitutional under Congress’ taxing powers, but because, as the head of the court, he understood the political ramifications of striking it down, legal commentator Jeffrey Toobin said in remarks Sunday at The New Yorker Festival.
“John Roberts is not an associate justice, he’s a chief justice. And he takes that role very seriously. He is the institutional voice of the Supreme Court. He is the custodian of the court’s public reputation. Roberts understood the political peril that would come by making the ‘Obamacare’ case the third in a trilogy, with Bush v. Gore in 2000, Citizens United in 2010 and ‘Obamacare’ in 2012,” said Toobin, a staff writer for The New Yorker and a senior legal analyst at CNN.
After the court’s oral arguments in March, Toobin famously predicted the individual mandate — and potentially the entire law — would be struck down. In April, he stood by that claim in an interview with TPM. On Sunday, Toobin joked about the embarrassment he felt after the court proved him wrong. It looked — “to me, at least” — like the court was going to strike down the law, Toobin said, adding that court watchers should take the justices’ comments at face value.
In his new book, “The Oath: The Obama White House and the Supreme Court,” Toobin writes that Roberts changed his vote during the deliberations, bucking the conservative members of the court and siding with the liberal justices to uphold the law. Roberts wanted to avoid making the “Obamacare” case the latest in a series of highly partisan cases with the five conservative justices ruling against the four liberals, Toobin said Sunday. In making their case, the conservative justices “overplayed their hand,” Toobin said, by calling for the entire law to be thrown out — a result that would have been an “extreme, draconian step.” That caused Roberts to pause, and he “found a way out” with the taxing power argument, Toobin added.
All that being said, Toobin cautioned against the assumption that Roberts will strike a moderate chord in the court’s current term, which kicked off earlier this month and is expected to cover affirmative action, gay marriage and voting rights cases. “John Roberts has not discovered his inner moderate,” Toobin said. “I don’t think we should expect this one vote to signal any sort of change in his judicial philosophy. … “Do not expect a new John Roberts. Expect the conservative he has always been.”
David Taintor is TPM’s News Editor. He contributes to TPM’s Livewire coverage, among other areas. David is from Chanhassen, Minnesota, where, yes, it gets very cold. Reach him at taintor [at] talkingpointsmemo.com