CBS News’ Jan Crawford confirms widespread rumors that Chief Justice John Roberts initially voted to strike down the Affordable Care Act’s individual mandate, but decided midway through the opinion drafting process that he could not support this constitutionally unjustifiable result. In what may be the biggest revelation of her piece, Crawford also reports that pseudo-moderate Justice Anthony Kennedy led the internal lobbying effort to bring Roberts back into the right-wing fold:

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.

Crawford cites two unnamed sources, and there are a very limited universe of people who could have revealed this information to her. Only the justices and their personal staff would have access to this knowledge, and it is highly unlikely that a clerk or secretary would be willing to risk their entire career by revealing the Court’s confidential deliberations to the press. Crawford, moreover, is a very well connected conservative reporter who has, at times, worked closely with the Federalist Society to drive conservative legal narratives. Nothing is certain, but it is likely that one or both of Crawford’s sources is a conservative justice.

Moreover, as Linda Greenhouse points out, it is possible that the Court started springing leaks more than a month before Roberts handed down his opinion:

Around Memorial Day, a number of conservative columnists and bloggers suddenly began accusing the “liberal media” of putting “the squeeze to Justice Roberts,” as George Will expressed the thought in his Washington Post column. “They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional,” Mr. Will wrote. Although the court has been famously leakproof, Mr. Will and some of the others are well connected at the court, and I wondered at the time whether they had picked up signals that the chief justice, thought reliable after the oral argument two months earlier, was now wavering, and whether their message was really intended for him.

To be clear, at this point only two facts are confirmed: 1) According to Crawford, Roberts flipped his vote midstream; and 2) someone within the Court must have leaked her this information. It is perfectly appropriate for Justice Kennedy, or any other justice, for that matter, to internally lobby Roberts to try to obtain his vote in an important case. If a member of the Court has turned to conservative columnists like Will or reporters like Crawford in order to pressure and then embarrass Roberts, however, that would be a significant and unusual escalation from the justices’ regular tactics.

Yesterday, Chief Justice Roberts embraced a ludicrous, Tea Party reading of the two key provisions of the Constitution, tossing out nearly two centuries of established law in the process. Yet, after he also refused to join a deeply partisan decision tossing out President Obama’s signature accomplishment — agreeing with several leading conservative judges in the process — the right-wing did not waste any time drawing its knives upon him. In just 24 hours, he was accused of everything from caving to non-existent “bullying” to being mentally unfit for duty.

It’s tough to imagine a more flagrant display of ungratefulness than the pushback Roberts is now receiving from his fellow conservatives. The reality is that Roberts consistently advanced the right’s agenda from the moment he joined the Court:

1) Corporate Money In Elections: Roberts jonied the majority in Citizens United, holding that wealthy corporations should have a nearly unlimited power to buy and sell American elections. Roberts also voted to undermine public financing laws in a way that severely undermines candidates without well-moneyed backers’ ability to compete in elections.

2) Judges For Sale: Roberts wrote a dissent in Caperton v. Massey that would have allowed a wealthy coal CEO to pay $3 million to put a sympathetic supreme court justice on that court. The same justice would then go on to $50 million verdict against the big spender’s company.

3) Corporate-Owned Courts: Roberts consistently votes to give corporations a nearly unlimited power to force workers and consumers into a privatized, corporate-run arbitration system that overwhelming favors corporations.

4) Dividing And Conquering Ordinary Americans: Roberts voted in AT&T Mobility v. Concepcion to allow corporations to strip their workers and consumers of their ability to bring class action lawsuits. Because of this decision, corporations now have a nearly unlimited power to cheat the people who do business with them — so long as they only do it a few dollars at a time.

5) Corporate Immunity To The Law: Roberts voted to give generic drug makers immunity to key state laws after one of their drugs caused a condition called tardive dyskinesia in many of the people who took it. Tardive dyskinesia is an horrific neurological condition that causes sometimes crippling, uncontrollable bodily movements, often in the face:

6) Abortion: Roberts also joined the Court’s decision restricting reproductive freedom in Gonzales v. Carhart, which reasoned that a woman’s right to choose must be cut back because “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

7) Race: Roberts has also consistently resisted attempts to eradicate the legacy of racism in America. Most notably, in Parents Involved v. Seattle School District No. 1, he claimed that a plan to desegregate public schools violates Brown v. Board of Education.

8) Gitimo: Roberts twice sided with President George W. Bush on questions of detainee treatment — as a lower court judge in Hamdan v. Rumsfeld, and as Chief Justice in Boumediene v. Bush.

9) Unequal Pay For Women: Roberts joined the Court’s discredited decision in Ledbetter v. Goodyear Tire rolling back women’s right to receive equal pay for equal work.

10) Older Workers: Roberts also joined the Court’s 5-4 decision in Gross v. FBL Financial Services limiting older workers’ ability to be free from age discrimination in the workplace.

Chief Justice John Roberts — a George W. Bush appointee — surprised many conservatives when he wrote the majority opinion upholding Obamacare’s individual mandate, but now some conservative activists are trying to link the side effects of Roberts’ epilepsy medication to his jurisprudence.

On his radio show yesterday, right-wing host Michael Savage — who has previously called autism a “phony disease” — claimed that Roberts’ epilepsy is the root cause of his “cognitive dissociation” in the Obamacare ruling:

Let’s talk about Roberts. I’m going to tell you something that you’re not going to hear anywhere else, that you must pay attention to. It’s well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Therefore neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts’ writings you can see the cognitive dissociation in what he is saying.

Listen:

Another right-wing radio host, Bryan Fischer, echoed Savage’s sentiments in a tweet citing a 2007 New York Times piece about the Chief Justice.

NYT, ’07: Roberts’ epilepsy meds “troubling side effects,” include “mental slowing and forgetfulness.”nyti.ms/LU0dgv

— Bryan Fischer (@BryanJFischer) June 29, 2012

In true form, the Drudge Report also linked to Savage’s comments in the wake of the ruling.

It’s remarkable that epilepsy is somehow still stigmatized significantly more than other neurological disorders. It’s even more remarkable that Savage, Fischer, and Drudge would stoop this low.

– Steven Perlberg

In 2008, the United States had an election, and the American people overwhelmingly elected a president and a Congress who believes it is a moral abomination that, in the wealthiest, most powerful nation that ever existed, tens of thousands of Americans die every day because they cannot afford lifesaving treatment. Today’s decision upholding nearly all of the Affordable Care Act reaffirms that the American people’s decision matters. In Chief Justice Roberts’ words,

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

Yet, while today’s decision is fundamentally a reminder that the United States is a democracy, it also complicates matters quite a bit. For reasons that will be explained in a subsequent post, the opinion butchers an understanding of two key constitutional provisions that prevailed in the very earliest days of the Republic. Perhaps most significantly, it also creates an unprecedented new limit on the federal government’s ability to partner with the states in order to solve national problem — and this limit could cost millions of low-income Americans their access to health care.

Under Medicaid, the feds offer funding to the states to enable them to provide health services to the poor. The states are free to take this money or to leave it on the table, but if they accept it they are required to comply with certain conditions. Nevertheless, the plaintiff challenged Obamacare’s expansion of Medicaid to provide health care for all people earning up to 133 percent of the poverty line, claiming that the law somehow “coerces” states into taking this new money. Roberts’ opinion buys this argument, holding that, because the states must accept Obamacare’s new Medicaid funds in order to continue receiving old Medicaid funds, that constitutes unconstitutional coercion.

One piece of good news is that Roberts distinguished the Affordable Care Act’s Medicaid expansion from previous expansions enough that his opinion probably would not lead to those past expansions being retroactively struck down. Another is that the opinion does not invalidate the Affordable Care Act’s Medicaid expansion either. Instead, it says that conservative states are now free to take the new Medicaid funds or leave them without risking any of their old funds.

The upshot of this is that Rick Perry’s Texas can now decide that it would rather give the finger to Obamacare than provide health care to hundreds of thousands of its residents, even though the federal government will cover 90 percent or more of those costs. Doing so, of course, would be cruel; it would save Texas very little money; and it would probably be unpopular with many Texas voters. But Texas now has this option if it chooses.

In the long run, it is likely that Texas will eventually fall in line — just as every single state in the country eventually realized that the existing Medicaid program is a really good deal that they should agree to. While political fires are burning hot, however, many low income Texans (and Mississippians, and Oklahomans . . . ) are likely to suffer for it.

Jonathan Cohn notes an odd quirk about a recent American Bar Association poll showing that 85 percent of legal experts polled by the ABA believe that the Affordable Care Act will be upheld by the Supreme Court. The same experts are more likely to pick conservative Chief Justice John Roberts than slightly less conservative Justice Anthony Kennedy as the most likely conservative to uphold the law:

The experts ABA surveyed were unanimous in predicting that the four liberal justices (Stephen Breyer, Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg) would vote to uphold and that Clarence Thomas would vote to strike it down. Fifty-three percent said Anthony Kennedy would join the liberals, but a higher proportion, 69 percent, thought Chief Justice John Roberts would join the majority. Majorities of about 60 percent predicted that the other two conservatives, Samuel Alito and Antonin Scalia, would determine the law is unconstitutional.

Although this view of Roberts and Kennedy is counterintuitive, it is not exactly surprising. In 2010, the Supreme Court handed down a case called United States v. Comstock which upheld a law that was very much at the margins of Congress’ lawful authority. In that opinion, Roberts took a somewhat more expansive view of federal power than Kennedy.

Because the Constitution gives Congress authority to “regulate commerce,” the United States has broad, sweeping authority over economic matters, but far more limited authority over non-economic regulation. Comstock upheld a federal law allowing for the indefinite detention of some sex offenders — a law which has virtually nothing to do with the nation’s economy. Nevertheless, Chief Justice Roberts joined the Court’s four more moderate members in a majority opinion upholding this non-economic law. Justice Kennedy wrote a separate concurrence which upheld the law as well, although on somewhat narrower ground.

Both the opinion Roberts joined and Kennedy’s concurrence support the conclusion that the ACA is constitutional. Moreover, unlike the law in Comstock, the ACA is very much at the core of Congress’ lawful authority because the Affordable Care Act regulates a market that comprises one-sixth of the national economy. Nevertheless, the fact remains that, in the only major federal power case that both Roberts and Kennedy sat on together, Roberts took the more expansive view of federal power.

Yesterday, the Supreme Court denied a request by the right-wing group Freedom Watch to hear oral arguments on whether Justice Elena Kagan should recuse herself from the Affordable Care Act litigation. Normally, ThinkProgress would not comment upon such a banal and obviously correct decision, except that it is worth highlighting Freedom Watch’s brief which, sadly, is indicative of the kind of penetrating legal reasoning that characterizes claims that Kagan may not hear this case. Here is just a brief sample:

Simply put, “We the People” are fed up and have already entered into what is in effect a Second American Revolution because judges and other government officials behave as if they are “above the law,” in effect nobility who can do as they please. . . . In short, the comments of Chief Justice Roberts [suggesting that Kagan does not need to recuse] are an affront to the high ethical standards of our Founding Fathers and amount to a subversion of our laws. They are disgraceful at best and at worst amount to obstruction of justice. They are the result of someone who became Chief Justice by first ingratiating himself to the “Washington establishment,” and now seeks to act as the Chief Justice not just of the Court, but of this same establishment – which for decades has pushed the nation to the brink of revolution by representing mostly its own interests, perpetuating and consolidating its power and selling out “We the People.” This is why in large part the nation is in a deep crisis; the majority of Americans have little if any respect for either the Supreme Court or our judiciary as a whole, notwithstanding their current similar disdain for the other two branches of government.

The situation is as bad as in 1776 when “We the People” declared independence from King George III and the British Crown. In the 236 years since the start of the first American Revolution, our current ruling class, which is not of the mettle of our Founding Fathers, – who pledged their sacred honor, fortunes and risked their lives to create a free nation – has come full circle. Today, the Supreme Court and the other two branches of government have assumed the role of a “royalty” – in some ways worse than even King George III – who feel free to ignore the legitimate interests and grievances of “We the People,” because they believe they are a “protected class” and above the law.

So, to be clear, the claim here is that far-right Chief Justice John Roberts is part of a giant conspiracy to help Kagan preserve President Obama’s chief legislative accomplishment, that this conspiracy is “in some ways worse” than monarchy, and that the American people are presently responding to it with a “Second American Revolution.” And this is what passes as legal argument among the Kagan recusal crowd. Sadly, this argument is only slightly better than the absurd claim that the Affordable Care Act itself is unconstitutional.