美最高法院惊天内幕：主法官罗伯茨原欲否决全民医保案，后改变裁决
另4名保守法官曾力劝其维持原判无果，最后与其决裂
Roberts switched views to uphold health care law
(CBS News) 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.
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold.
"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this."
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.
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.
After the historic oral arguments in March, the two knowledgeable sources said, Roberts and the four conservatives were poised to strike down at least the individual mandate. There were other issues being argued - severability and the Medicaid extension - but the mandate was the ballgame.
It required individuals to buy insurance or pay a penalty. Congress had never before in the history of the nation ordered Americans to buy a product from a private company as part of its broad powers to regulate commerce. Opponents argued that the law exceeded Congress' power under the Constitution, and an Atlanta-based federal appeals court agreed.
The Atlanta-based federal appeals court said Congress didn't have that kind of expansive power, and it struck down the mandate as unconstitutional.
On this point - Congress' commerce power - Roberts agreed. In the court's private conference immediately after the arguments, he was aligned with the four conservatives to strike down the mandate.
Roberts was less clear on whether that also meant the rest of the law must fall, the source said. The other four conservatives believed that the mandate could not be lopped off from the rest of the law and that, since one key part was unconstitutional, the entire law must be struck down.
Because Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the court's historic decision. He kept it for himself.
Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.
Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.
But Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.
There were countless news articles in May warning of damage to the court - and to Roberts' reputation - if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.
Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.
It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.
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.
Some informed observers outside the court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the president. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law. There was no doctrinal background for the Court to fall back on - nothing in prior Supreme Court cases - to say the individual mandate crossed a constitutional line.
The case raised entirely new issues of power. Never before had Congress tried to force Americans to buy a private product; as a result, never before had the court ruled Congress lacked that power. It was completely uncharted waters.
To strike down the mandate as exceeding the Commerce Clause, the court would have to craft a new theory, which could have opened it up to criticism that it reached out to declare the president' health care law unconstitutional.
Roberts was willing to draw that line, but in a way that decided future cases, and not the massive health care case.
Moreover, there are passages in Roberts' opinion that are consistent with his views that unelected judges have assumed too much power over American life, and that courts generally should take a back seat to elected officials, who are closer to the people and can be voted out of office if the people don't like what they're doing.
As Roberts explained in his opinion:
"The framers created a federal government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people."
Regardless of his thinking, it was clear to the conservatives that Roberts wanted the court out of the red-hot dispute.
Roberts had begun to focus on a different argument to uphold the law and the mandate's penalty by defining it as a tax. That strained argument had received almost no attention in the lower courts, which had uniformly rejected it. It was seen as a long-shot by the law's supporters.
It would have been far easier, legally, for Roberts to have followed the rationale of two conservatives who voted to uphold the law in the lower courts: Appeals Court Judges Laurence Silberman and Jeffrey Sutton.
In separate opinions for the D.C.- and Cincinnati-based federal courts, Silberman and Sutton wrote that the mandate had not exceeded Congress' commerce power.
Roberts surely could have gotten the liberals to join a decision that the mandate was similar to a 1942 Commerce Clause case involving a farmer who was producing wheat for his own use and had no intention of selling it. In that seminal case, the Court ruled the farmer's wheat production nonetheless affected Commerce, and Congress therefore could regulate it.
In the health care case, since no one was urging the court to overturn that precedent (Wickard v Filburn), the court could have issued a narrow opinion. It could have ruled that since it wasn't being asked to depart from settled law, the health care act would stand, based on prior precedents.
Instead, Roberts focused the majority opinion on a much more difficult legal proposition: The tax power.
But Roberts also would limit Congress' authority in future cases under the commerce power.
Roberts then engaged in his own lobbying effort - trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as "arm-twisting."
Even in Roberts' opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy's vote. Roberts even used some of the same language that Kennedy used during oral arguments.
During the arguments in March, Kennedy told Solicitor General Donald Verrilli:
"Here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases - and that changes the relationship of the federal government to the individual in a very fundamental way."
Roberts wrote in the section of his opinion analyzing the Commerce Clause:
"Accepting the government's theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the federal government."
On the surface, Kennedy would appear to have been Roberts' best shot to persuade. The other three justices - Thomas, Antonin Scalia and Samuel Alito - are seen as more solidly conservative and much less susceptible to pressure.
After all, it was Kennedy who "betrayed" conservatives in 1992, when he flipped his vote in a key abortion case that could have overturned Roe v. Wade, the landmark decision that guaranteed a woman's right to abortion.
In the 1992 case, Planned Parenthood v. Casey, Kennedy initially was with conservatives, but then forged a last-minute alliance with Justices Sandra Day O'Connor and David Souter to put Roe v. Wade on more solid ground than even the original decision itself.
Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy - in other words, changeable and too moderate.
That's not entirely fair to Kennedy. In fact, there are underlying and consistent themes in his jurisprudence, much more so than in the jurisprudence of O'Connor. Kennedy has a libertarian streak, and he is skeptical of expansive government power over individuals. In fact, if there's an issue of an individual versus invasive government, Kennedy sides with the individual.
As a result, Kennedy supports the right to possess a firearm for self-defense AND a woman's right in the context of abortion. He opposes certain laws that discriminate against homosexuals or restrict a person's freedom of speech.
Kennedy also is strong on issues of federalism - and is remarkably consistent. His opinion in a 1999 case, Alden v. Maine, is considered one of the Court's finest in that area. Ruling that states were immune from private lawsuits in state courts, Kennedy wrote: "Sovereign immunity derives not from the Eleventh Amendment but from the federal structure of the original Constitution itself."
And in a 1995 term limits case, when the Court rejected state efforts to impose term limits on Members of Congress, Kennedy wrote a separate, concurring opinion to make a point about federalism:
"Federalism was our nation's own discovery. The framers split the atom of sovereignty . . . It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other."
Those structural boundaries, Kennedy believes, help protect the individual from runaway government power, and are key components to protecting liberty.
All of that dovetails with Kennedy's position on the individual mandate in the health care law. Close associates of Kennedy never thought he would waver in the case once he recognized the federal mandate as an encroachment on individual liberty (points Kennedy later would make in his sections of the joint dissent).
In fact, Kennedy was the most forceful and engaged of all the conservatives in trying to persuade Roberts to stand firm to strike down the mandate. Two sources confirm that he didn't give up until the very end.
But Roberts didn't focus entirely on Kennedy, the sources said. He tried to persuade the conservatives to join at least the parts of his opinion with which they agreed, such as his Commerce Clause analysis.
"People, for good reasons of their own, often fail to do things that would be good for them or good for society. Those failures - joined with the similar failures of others - can readily have a substantial effect on interstate commerce," Roberts wrote in his opinion. "Under the government's logic, that authorizes Congress to use its commerce power to compel citizens to act as the government would have them act.
"That is not the country the framers of our Constitution envision," Roberts wrote.
But despite Roberts' strong language on the Commerce Clause, the conservatives would have none of it, the two sources said, even though there was no significant difference in their reasoning on that issue.
Indeed, since the four conservatives agreed the mandate went beyond the commerce power, the Court now has five Justices who would constrain what Congress can do going forward - imposing significant limits on federal power.
The majority decisions were due on June 1, and the dissenters set about writing a response, due on June 15. The sources say they divided up parts of the opinion, with Kennedy and Scalia doing the bulk of the writing.
The two sources say suggestions that parts of the dissent were originally Roberts' actual majority decision for the court are inaccurate, and that the dissent was a true joint effort.
The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.
The language in the dissent was sweeping, arguing the court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia - and then, there is Justice Kennedy.
"The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril," the dissent said. "Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."
股狗翻译：
首席大法官约翰·罗伯茨（CBS新闻）最初片面最高法院4保守的法官，以取得下奥巴马总统的医疗保健改革法，在负担得起的保健法“的核心，但后来改变了他的位置和形成1与自由派联盟坚持散装法律，根据审议的具体知识来源。
消息来源说，罗伯茨则经受住了长达一个月的，绝望的运动，让他回到他原来的位置。具有讽刺意味的是，大法官安东尼·肯尼迪 - 许多保守派认为是最有可能的法律缺陷和投票的公正 - 领导的努力，试图带来罗伯茨回折。
“他是无情的，”一位消息人士说肯尼迪的努力。 “他非常从事这个。”
但是这一次，罗伯茨公司举行。等保守派递给他，作为一名法官，基本上把它翻译成自己的消息，“你自己。”
保守派拒绝参加任何方面，包括部分与他们商定，如他对国会的商业条款下的权力的限制分析，他认为，该人士说。
相反，四人联手，精心设计了一个极不寻常的，无符号的联合异议。他们故意忽略了罗伯茨的决定，该人士称，如果他们甚至不再愿意与他进行辩论。
最高法院的内部工作渗透到几乎是不可能的。私人会议，法院的法官讨论案件和投最初的票，只有九名成员 - 没有任何法律允许的文员或书记。法官是出了名的密切守口如瓶，他们的法律文员必须同意保持完全保密事项。
但在密切关注的情况下，罗伯茨字'不寻常的转变，已广为流传法庭内，被称为除法律文员，商会的助手和秘书。它也激起了保守的法官，谁认为，罗伯茨站在与他们的愤怒。
在3月份历史性的口头辩论后，两个知情人说，罗伯茨和四个保守派准备打击至少个人的任务。有其他问题，被认为 - 分割和医疗延伸 - 但任务的球赛。
它要求个人购买保险或支付违约金。国会从来没有以前在民族的历史，被美国人购买从一家私营公司的产品作为其广泛的权力，规范电子商务的一部分。反对者认为，法律超越宪法规定国会的权力，总部位于亚特兰大的联邦上诉法院同意。
总部位于亚特兰大的联邦上诉法院说，国会没有那种膨胀权力，打倒违宪的任务。
在这一点上 - 国会的商业力量 - 罗伯茨同意。在法院的私人会议后立即参数，他对准四个保守派打击任务。
罗伯茨是不太清楚这是否也意味着法律的其余部分必须落在该人士说。其他四个保守派认为，任务不能被砍掉从其他法律，因为一个关键部分是违宪的，整个法律必须打倒。
由于罗伯茨是在广大打击任务的最高级的司法，他选择了正义会写法院的历史性决定。他为自己保留。
在未来的六个星期，罗伯茨开始工艺打倒的任务的决定，外部的压力开始增长。罗伯茨几乎可以肯定的是意识到这一点。
一些保守派，如大法官克拉伦斯·托马斯，刻意避免对法院新闻报道的问题，正在等待时（完全避免一些出版物，如纽约时报）。他们已经解释了，他们不希望被外界舆论的影响，认为自由的网点或感到压力。
但罗伯茨注重媒体的报道。作为终审法院首席法官，他敏锐地意识到，他在球场上的领导作用，他还法院如何被公众认为是敏感的。
有无数的新闻文章在5月的损害向法院提出的警告 - 罗伯茨的声誉 - 如果法院以打击任务。政要，包括总统本人，表示有信心将坚持任务。
有些人甚至建议，如果罗伯茨打倒的任务，那就证明他一直欺骗他的确认听证会期间，当他解释说：司法克制主义哲学。
它在这段时间，它也变得清晰，罗伯茨是保守的法官，作为一个把它，“摇摆不定”，该人士说。
它不知道为什么罗伯茨改变了他的任务，并决定，以维护法律。至少有一个保守的司法试图让他解释，但不满意的反应，根据源与知识的对话。
在法庭外的一些消息灵通的观察家断然拒绝的想法，罗伯茨自由的压力沉着应战，或由总统盯着。他们反而认为，罗伯茨实现一个具有里程碑意义的卫生保健法的裁决推翻的历史后果。有没有法院的教义背景回落 - 前最高法院案件无关 - 说个人的任务跨越了宪法线。
完全的情况下提出了新的动力问题。从来没有过国会试图迫使美国人购买私人产品;作为一个结果，从来没有过的法院裁定，国会没有权力。这是完全未知的水域。
为了打击任务超过商业条款，法院将不得不创造出一个新的理论，已经打开了批评，认为它伸出宣布总统的医疗保健法违宪。
罗伯茨是愿意借鉴这一行，但在某种程度上决定未来的情况下，而不是大规模的卫生保健情况。
此外，还有罗伯茨认为，与他非民选的法官承担了美国生活的权力太大的意见是一致的段落，和，法院一般应坐后排座位民选官员，谁是更贴近人民，并可以进行表决走出办公室，如果人们不喜欢他们在做什么。
正如罗伯茨解释说，在他看来：
根据“宪法”的制定者创造一个权力有限的联邦政府，并分配到法院强制执行这些限制的义务。法院今天这样做，但法院不支付得起的医疗法的智慧表达任何意见。这个判断是保留给人民。“
无论他的思想，这是明确的保守派，罗伯茨想烧红的纠纷法院。
罗伯茨已经开始集中到一个不同的观点，坚持由它定义为税收的法律和任务的惩罚。在下级法院收到的紧张参数几乎没有人关注，已一致拒绝。它被看作是通过法律的支持者长镜头。
这本来是容易得多，在法律上，罗伯茨都跟着两个保守派谁投赞成票，下级法院在坚持法律的理由：上诉法院法官劳伦斯·西尔伯曼和杰弗里·萨顿。
在直流和总部位于辛辛那提的联邦法院的独立意见，西尔伯曼和萨顿写的任务没有超过国会的商业力量。
罗伯茨一定能得到自由派加入的任务是到1942年贸易条款的情况下，涉及农民生产供自己使用的小麦和无意出售的决定。在这一开创性的情况下，法院裁定农民的小麦产量仍然影响商业，和国会因此可以调节。
在健康护理的情况下，因为没有人要求法院推翻先例（Wickard至五Filburn），法院可以发出狭窄的意见。它可以排除，因为它没有被要求出发，从解决法律，卫生保健法“将站在，根据之前的先例。
罗伯茨，而是集中在一个更困难的法律命题的多数人的意见：税权。
但罗伯茨也将限制国会在今后的案件中的权威下的商业力量。
罗伯茨然后从事自己的游说努力 - 试图说服法官肯尼迪至少加入他的决定，所以法院会出现的情况下更加团结。消息来源说，有相当数量是一个给予和采取与肯尼迪和其他法官。一个公正，有消息称，形容为“扭臂。”
即使在罗伯茨认为，这是在六月初的法官之间传阅，有肯尼迪的投票出现量身定做的词组。罗伯茨甚至用一些相同的语言，肯尼迪在口头辩论中使用。
在三月的论点，坚尼地告诉检察长唐纳德·Verrilli：
“这里的政府说，联邦政府有责任告诉公民个人的，它必须采取行动，这是我们在以往的个案中有什么不同 - 改变联邦政府的关系在一个非常个人根本的办法。“
