RBG: Roberts “Distanced Himself From the Court in the Health Care Decision”

August 22nd, 2014

After NFIB v. Sebelius, Jan Crawford, and others reported that the Scalia-Kennedy-Thomas-Alito bloc was incensed at the Chief Justice. So much so that they didn’t even cite his opinion. (In my book, I didn’t quite buy into this narrative, but it prevailed)

Yet, the Justices consistently said in press statements that there isn’t such anger. Justice Scalia did an interview on CNN in July 19 with Piers Morgan, where he emphatically rejected that there was a “falling out” with the Chief.

But now, Justice Ginsburg suggests otherwise. In her interview with Marcia Coyle, she notes that the Chief’s decision “distanced” himself from the Court:

NLJ: The chief justice will begin his 10th term in October. Has he changed in any way over the years here?

GINSBURG: He was always good at running our conferences. He is a little more relaxed than the old chief. He is a great representative of the court because he can give the best two-minute speech. I love it when he gives the closing remarks at the court’s musicale because I wonder what is he going to come up with and it is always something terrific. And of course, he did distance himself from the court in the health care decision. He knew he was going to take a lot of criticism from his home crowd for that and I think the same thing for the Massachusetts abortion-clinic case.

He is very smart and he writes well-written opinions.

RBG already cast Justice Sotomayor in a bad light. Here, she highlights fractures within the Court with respect to the Chief, and his NFIB dissenting colleagues. This is in very poor taste. I’m not sure what she, or the Court, stands to gain from that.

Further, RBG continues to focus on how the Court reacts to public opinion, noting that Roberts knew “he was going to take a lot of criticism from his home crowd for that,” with “for that” referring to upholding the law. The study of the impact of the media on the Chief’s decision was something I’ve written a lot about. While the Chief (wisely) has not commented, RBG seems to think this was at least something on his mind.