by Mitch Kokai
Senior Political Analyst, John Locke Foundation
A forthcoming biography of Chief Justice John Roberts contains the first account of the Supreme Court’s internal politicking over the 2012 NFIB v. Sebelius decision, in which Roberts joined with the Court’s four liberals to uphold the Affordable Care Act’s individual mandate. …
… The book relates that in the weeks following the March 2012 arguments, Roberts voted with the conservative bloc to strike down the individual mandate, finding Congress had exceeded its power under the commerce clause by compelling people to buy insurance.
Roberts elected to keep the majority opinion for himself — one of the few formal powers of the chief justice is the duty to assign opinions.
As time progressed, Roberts grew uneasy and sought a third way. Initially, he hoped Justice Anthony Kennedy — the vaunted swing justice who had negotiated compromise decisions in seminal cases before — would be amenable to such negotiations. Whatever his reputation, Kennedy was not a moderate but an idiosyncratic ideologue, and he was convinced the ACA was unconstitutional.
Thereafter, the chief reached terms with the Court’s two moderate liberals, Justices Stephen Breyer and Elena Kagan. The trio brokered a deal in which the Supreme Court would uphold the individual mandate as a legitimate exercise of Congress’s taxing power (but not the commerce power) while striking down the ACA’s Medicaid expansion.