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As America waits for the final Supreme Court rulings of this session, Sen. Mike Lee, R-Utah, is revisiting the landmark Obamacare ruling by the Supreme Court last year in which Chief Justice John Roberts upheld the individual mandate – a move he believes was the result of tremendous pressure coming from the White House and Democrats in Congress.
On June 28, 2012, Roberts joined the left of the Court in a dramatic 5-4 decision to uphold President Obama’s signature legislation. The Court’s four left-leaning justices – Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor – sided with Roberts, who was appointed to the court by President George W. Bush. Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas dissented.
Lee is the author of the ebook, "Why John Roberts Was Wrong About Healthcare: A Conservative Critique of the Supreme Court's Obamacare Decision," and a member of the Senate Judiciary Committee. He is a former assistant U.S. attorney and a former Supreme Court clerk for Justice Samuel Alito.
"I wrote it first and foremost to explain to people that what the Court did in that case was to make law, to legislate. The chief justice rewrote Obamacare in order to save it. He amended it, not just once but twice, in order to save it from an otherwise inevitable finding of unconstitutionality, and that's a problem," said Lee, referring to Chief Justice Roberts' ruling that the mandate failed several constitutional tests but survived as a tax, which is within the power of Congress. Democrats have always insisted that the fee imposed for not complying with the mandate is not a tax.
The majority opinion also altered the Medicaid provisions within the law.
"I can't think of any other instance in which a court so blatantly rewrote legislation in order to save it," he told WND. "There have been instances where a court will look the other way, where a court will pay short shrift to this or that aspect of the analysis before it. But I can't think of another case where the court has rewritten a statute not just once but twice in order to go to obviously great lengths to avoid a finding that it's unconstitutional."
Roberts defended his decision by saying a court's role is to save a statute if there is a way to plausibly claim it's constitutional. Lee said that was one of the chief justice's major mistakes.
"That's where he went wrong. It's true that when courts are reviewing a statute against a constitutional challenge, to the extent that there are ambiguities, to the extent that you can read a provision one way or the other, the court's supposed to favor any possible reading of the statute that would save it," Lee said. "The reading that he adopted was not fairly possible. It was unambiguous based on the text that what Congress did contravened the Constitution. And that's why he messed up."
Shortly after the 5-4 ruling was handed down last summer, reports surfaced that Roberts originally sided with the three conservative justices and swing vote Anthony Kennedy to find the individual mandate unconstitutional. Sometime between the oral arguments in March and the final verdict in June, Roberts flipped his vote to uphold Obamacare. Kennedy reportedly tried for one month to convince Roberts to stick with his initial instinct and rule the mandate unconstitutional.
But Roberts refused to budge.
On April 2, Obama publicly declared, "Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint – that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step."
Obama has publicly attacked the Court before, condemning the justices to their faces during the 2010 State of the Union for having "reversed a century of law to open the floodgates for special interests" in the Citizens United v. Federal Election Commission case and urging Congress to "pass a bill that helps to right this wrong."
CBS News reported, "It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation."
The conservative justices then drafted a highly unusual, unsigned joint dissent. According to the report, "They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate." Several months later, Justice Scalia admitted, "I was disappointed it came out the way it did."
Speculation at the time suggested public pressure from President Obama and other supporters of the law succeeded in convincing Roberts to find a way to uphold Obamacare.
Lee believes that's largely correct. He said the construction of the minority opinion demonstrates that it was the majority opinion at one time, but Roberts ultimately succumbed to the pressure.
"This change in his vote likely occurred about the same time when I saw a big uptick in the public criticism against Chief Justice Roberts. It was sort of preemptive criticism from Democrats in the Senate and from the White House counseling him, pleading with him, warning him, insisting that it would be a form of judicial activism if he invalidated a law that was 'duly enacted by an elected Congress,'" Lee said. "So yeah, it does appear to have had that effect."
Roberts was first nominated to the Supreme Court as a replacement for retiring Justice Sandra Day O'Connor in the summer of 2005. When Chief Justice William Rehnquist died just weeks later, Bush shifted the nomination for Roberts to become chief justice. In almost eight years in that role, Lee said Roberts has honored his oath very well, but the one exception to that record could not have come on a more important case.
"For the most part, he has been consistent with his oath to uphold the Constitution. He has been a judicial conservative, what you would call a textualist, someone who tries to read the law based on what it says rather than what he wishes it said," Lee said. "This case was an aberration, not only in its outcome but also in the fact that I'm not sure there's ever been another case that he's decided that was as prominent and as far-reaching in its implications as this one. Nor was there any other case in which there was so much attention paid to him personally related to the outcome of the case."
Upon hearing news of Robert’s decision, talk-radio host Michael Savage compared the chief justice to the traitor during the American Revolution, calling him a “turncoat” and declaring, “Justice Roberts is a sellout. Period.”
Savage also suggested the use of mind-altering drugs to treat seizures could explain why Roberts upheld Obamacare along with four liberal colleagues. Roberts reportedly has a history of epileptic seizures.
Likewise, talk-radio host Mark Levin called for term limits for Supreme Court justices.
“If justices want to be political,” said Levin, “then they shouldn’t serve for life, because the American people deserve better than this. And that’s the bottom line. … The fact of the matter is we, the American people, deserve public officials – whether they’re elected or appointed to serve for life or for limited terms – who are going to uphold our institutions. And if not going to do it, there’s 312 million Americans – we’ll find some who can.”
In 2012, WND selected Justice Roberts for its first-ever Benedict Arnold Award for single-handedly delivering the swing vote to approve Obamacare and perhaps even crush the American health system that has been the envy of the world.
“There are lots of bad guys out there who would qualify as ‘Villain of the Year,’ but precious few candidates for the ‘Benedict Arnold Award,’” explained WND Vice President and Managing Editor David Kupelian at the time. “Benedict Arnold, after all, was a good guy; he was an American general in the Revolutionary War who fought valiantly on behalf of the Continental Army – that is, until, for reasons yet unknown, he defected to the British side and betrayed the cause he had formerly served.”
Kupelian added, “That pretty much describes Justice Roberts, who gained the enthusiastic support of conservatives and other Constitution-lovers by virtue of his earlier rulings and judicial temperament, and yet betrayed that trust in a devastating way. And we still don’t know why he did it.”