It is now acknowledged
that Justice Roberts did indeed flip his opinion on the ACA. Originally, he was set to kill the thing -- then he decided to keep it alive.
Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
The inner-workings of the Supreme Court are almost impossible to penetrate. The Court's private conferences, when the justices discuss cases and cast their initial votes, include only the nine members - no law clerks or secretaries are permitted. The justices are notoriously close-lipped, and their law clerks must agree to keep matters completely confidential.
But in this closely-watched case, word of Roberts' unusual shift has spread widely within the Court, and is known among law clerks, chambers' aides and secretaries. It also has stirred the ire of the conservative justices, who believed Roberts was standing with them.
It is even suggested that Roberts had a hand in crafting the dissent before he decided to go the other way.
CBS does not name any sources for this story, but it's pretty obvious that much of the inside information came from people working for Justice Kennedy -- and that this looseness of lip probably had Kennedy's sanction.
So the question remains: Why did Roberts flip? The CBS News piece argues, unconvincingly, that he acted out of conscience. Sorry. I can't buy that.
Neither can I accept that Roberts bowed to pressure from the administration or the NYT. If that kind of pressure were effective, then the Citizens United decision would have read very differently.
Nevertheless, I do believe that Roberts is susceptible to pressure -- from the right. He is a creature of the conservative movement. Bush would not have put Roberts where he is if Roberts were undependable.
I think that someone told him that allowing the ACA to stand -- at least for now -- will help Romney get elected. Romney seems convinced that Obamacare is a winning issue for him, and I don't believe he's bluffing. Mitch McConnell
says that Roberts' decision to define the mandate as a tax makes it much easier for the Senate to overturn the ACA, since a supermajority is not needed.
(It is interesting to note that a country addicted to conspiracy theories usually draws the line when it comes to the Supreme Court. We love to express paranoia about everything and everyone except
for those nine people. To the best of my recollection, the only major work of fiction to offer up a Supreme Court conspiracy theory is John Grisham's The Pelican Brief
. If you try to conjure up with a scenario in which Roberts meets with Powerful Men In Dark Rooms, your exercise in fear-mongering will at least have the virtue of novelty.)
The Roberts flip is intriguing, but I'm even more interested in the profound shift of public opinion. The most interesting poll to come out of this controversy is this one
from Fox Pseudonews, published just before the Supremes rendered their decision...
A Fox News poll released Wednesday finds nearly half of voters oppose the law passed by Congress and signed into law by President Obama in 2010. Thirty-nine percent favor the law. Thirty-nine percent -- the exact same number -- also favored it at the time it was passed two years ago (April 2010).
What should happen if the court invalidates the entire health care law? The largest number of voters -- 47 percent -- thinks Congress should try to pass “more modest” reforms. The rest divide evenly between the opposite ends of the spectrum: 24 percent want Congress to keep pushing the issue and try to pass the “most extensive” reforms it can, while another 24 percent want lawmakers to stay out of health care altogether.
The preference for moderation on health care extends across party lines.
Yes, I know: This is
Fox we are talking about. Fox News' idea of "moderation" is not mine.
Still, it would appear that those who want the "most extensive" reforms -- which is simply another way of saying single-payer
-- are in the minority. A mere 24 percent of the citizenry are single payer advocates, according to this poll. Even if we presume that the real number is 34 percent, we're still talking about a minority opinion.
And yet...and yet...
Things were very different
as recently as February, 2009.
A New York Times/CBS News poll released last week shows, yet again, that the majority of Americans support national health insurance.
The poll, which compares answers to the same questions from 30 years ago, finds that, “59% [of Americans] say the government should provide national health insurance, including 49% who say such insurance should cover all medical problems.”
Only 32% think that insurance should be left to private enterprise.
The number of people favoring single-payer has been halved
-- if we can trust the new Fox numbers. I don't. But at the same time, I must presume that their numbers aren't lightyears away from the real ones. Conclusion: In just a few short years, American opinion has undergone a radical change; many millions of people made a hard right shift in defiance of their own best interests.
Such is the power of propaganda.