Whatever you think of the Affordable Health Care Act (AKA Obamacare), last week’s Supreme Court ruling should have sent up all kinds of red flags.  As the information became available, I took note of several curious aspects of the ruling:

  • Chief Justice Roberts wrote the “majority opinion” himself.  No one can assign the writing of an opinion to him–he must choose to do it.  It was intentional.
  • There is a precedent for the Chief Justice to side with a close majority in order to control who writes the opinion, and thereby to weaken or limit the effect of the ruling.
  • All four of the other justices in the “majority” wrote a concurrent opinion, but strongly disagreeing with the Chief Justice’s conclusions about the Commerce Clause and the Taxation clause.
  • All four justices in the minority issued a dissent, never referring to the Roberts opinion, but calling the liberal concurrence a “dissent”.
  • Roberts’s vote put him in the majority, but his reasoning gave the weakest possible justification for the ruling.  By calling the mandate a tax, which the government had not done in its argument, he made the ruling both political and narrow, and put the issue back in the hands of Congress.  (A ruling on the Commerce Clause, which the government wanted, would have had far more reaching effect on governmental power.)
  • Chief Justice Roberts is on record as being very concerned with the public/media perception of the court and its balance of power between its left and right factions.

My observation and conclusion was that something unusual happened behind the closed doors of the Supreme Court, and that the Chief Justice manipulated the opinion to minimize public/media outcry toward the court, while putting the issue back on the table of public debate in an election year.

Then today I see a news article that, if true, supports my conclusions about what went into the court’s decision.  I should be glad that I was right in my perceptions, but the article is troubling for another reason:  The court is leaking.

The Supreme Court has been and needs to be about secrecy.  Nothing about private deliberations or disagreements is ever published until years after the fact, when the issue is long settled and the majority of the justices involved are no longer on the bench.  But here is a story, based on anonymous sources familiar with the conservative side of the deliberations and machinations of the writing of the opinion, published before the ink is dried on the decision.  That is disturbing.

IF the Chief Justice is indeed susceptible to the pressure of public/media opinion; and if the honor code of secrecy has broken down, allowing sources close to the court to leak information and potentially shape that same public/media opinion; then the Supreme Court of the United States has become another political branch of government, controlled by outside pressure rather than the Constitution and the justices’ ideological approaches to it.  And that’s scary.

Thank God for Justice Thomas and his refusal to read the New York Times.  As the saying goes, may his tribe increase.

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