Rumours abound in US on Roberts’ decision

By Stephanie Kirchgaessner in Washington

Political pundits in Washington’s beltway are still busy dissecting the Supreme Court decision last week that upheld Barack Obama’s 2010 healthcare law.

While much of the initial speculation focused on whether the rationale behind Chief Justice John Roberts tie-breaking decision in favour of the law would ultimately come back to haunt Democrats, the chattering classes are now ruminating on an even more intriguing question: whether Mr Roberts was poised to overturn the law but then changed his mind in the lead-up to the landmark decision.

The secret nature of the US high court means that � absent the unlikely publication of a tell-all-book or a direct admission from one of the nine justices � no one outside the court will ever know for sure whether Mr Roberts had a change of heart before he made the uncharacteristic decision to side with the court’s four liberal members.

But that is not stopping anyone from reading the tea leaves or hinting at insider information. First there was the Wall Street Journal’s conservative editorial page on the day after the decision.

The editorial referred to the wording of the dissent by Justice Anthony Kennedy and “other sources” when it speculated that there was “originally” a 5-4 majority that struck down the law. Specifically, Mr Kennedy refers to Justice Ruth Bader Ginsburg’s “dissent” on the mandate.

The correct legal parlance would have been to refer to Ms Ginsburg’s “concurring” opinion since she was in the majority. In other words, Mr Kennedy could have been implying that she was in the minority at an earlier stage.

Linda Greenhouse, a Yale Law School professor who covered the court for the New York Times for 30 years, said she believed the best evidence of a last-minute vote switch came from outside the court. She pointed to a sudden outcry among some conservative pundits and bloggers at the end of May, in which they accused the “liberal media”of putting pressure on Mr Roberts.

Although the court was “famously leakproof”, Ms Greenhouse said such comments from conservatives such as George Will, who are “connected at the court”, meant that they could have been picking up “signals” that the chief justice was rethinking his position.

The Washington Post pointed out in an article that the dissenting opinion by Mr Kennedy devoted much attention to the idea that the law had to be overturned in its entirety if the individual mandate at the heart of Obamacare was struck out. It also did not delve into the opinion by Mr Roberts himself, suggesting that Mr Kennedy was writing in response to Ms Ginsburg’s opinion, which would have been the dissenting opinion if Mr Roberts was not in the majority.

On the airwaves, conservatives were not particularly comforted by the idea that they almost overturned Obamacare. Glenn Beck, the conservative radio host, announced he was selling a shirt with the image of Mr Roberts’ face and the word “Coward” underneath.

Mr Roberts, for his part, is keeping his lips sealed. At a judicial conference on Friday, he said he would spend the next two weeks teaching a class far from US shores.

“Malta, as you know, is an impregnable island fortress. It seemed like a good idea,” he said, drawing laughs.

Copyright : The Financial Times Limited 2012.