... This conflict has been brewing for some time. You can trace it back to the first full term of the new Roberts Court. That term had several controversial cases, including school busing and abortion. Liberal justices thought Roberts had signaled he would be open to compromise and be more moderate. But he sided with conservatives that year, making the liberals feel misled. They were furious. As one said at the time: "He talks the talk, but won't walk the walk."
Conservatives were angry at Roberts, too - they thought he gave the liberals false hope. He ended up just pushing them further away.
That tension eased over the summer of 2007. But this conflict among conservatives - after Roberts "walked the walk" with liberals - may take much longer to resolve.
It's not unheard of for the Court to erupt into conflict; Bush v. Gore in 2000 was a famous example. But some people say you would have to go back nearly 70 years to see this kind of tension, and almost bitterness, that now exists among the justices. ...Jan Crawford, CBS
Jan Crawford is the journalist said to be on closest terms with the justices and is credited (so to speak) with the leaks about the Court's inner workings.
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Jeffrey Toobin is another person who might be called an intimate of the Supreme Court -- if platonic intimacy counts. No one, far as I've heard, gets to home base with the justices. But some get better chances than others to see how the Court works. Toobin is one of them. His description of Chief Justice Roberts, in the aftermath of the Court's decision about health care, is particularly helpful.
When Chief Justice John Roberts emerged from behind the red curtain and took his seat at the center of the Supreme Court bench last Thursday, he did not look like his usual self. The brisk confidence of the Midwestern burgher was absent, replaced by a more sombre mien. His eyes were red-rimmed and downcast, his voice nearly a mumble. The announcement of the Court’s decision in National Federation of Independent Business v. Sebelius was clearly an unhappy duty for him. It’s easy to see why. By affirming the constitutionality of the Affordable Care Act—the legislative cornerstone of Barack Obama’s Presidency—Roberts was disappointing those closest to him. Roberts was a professional Republican: a staffer in the Reagan and Bush I Administrations, a judge and a Justice thanks to Bush II. And here, alone and exposed, Roberts joined with the Court’s four liberals to dash the Republican Party’s most fervent wishes. It was a singular act of courage.
One hopes, then, that it is not too churlish to point out that this should have been an easy case. The core dispute before the Court involved the portion of the A.C.A. which requires all Americans, eventually, to have health insurance. Failure to comply with the so-called individual mandate subjects scofflaws to a modest fee, to be paid when they file their tax returns. The basic idea for the mandate had bounced around policy circles for years, usually with Republican sponsors. As governor of Massachusetts, Mitt Romney implemented an individual-mandate system; as President, Obama based his proposal, more or less, on Romney’s. For two decades—from the mandate’s début in a policy proposal released by the right-wing Heritage Foundation to shortly before Congress voted on the A.C.A.—no one suggested that there was any constitutional problem with the idea. This is because there isn’t one. ...Jeffrey Toobin, New Yorker
Bottom line: The minority justices' individual decisions were either based on the Constitution (which is what decisions are supposed to be) or they were personal and political. Since they weren't -- clearly -- about Constitutional law, they were the latter. In the majority, Roberts managed to save the legislation but lose the respect of those who saw him do an amateurish, embarrassing pole dance around the Commerce Clause, deliberately leaving it open to further depradation. "If Roberts has succeeded in limiting the scope of federal power, the health-care decision may look very different from how it looks today," as Toobin points out.
And that's what makes it impossible to regard Roberts' presumed effort to restore the Court's bona fides as anything but useless. It leaves us with a discredited Court (we've learned to live with that since 2000) and a chief justice who is, one way or another, a disappointment to all.
