Katsas: Justice Roberts Switch ‘Disappointing’

John G. Roberts Jr.
Getty Images
John G. Roberts Jr.

Chief Justice John Roberts may have switched his vote to save the Obama administration’s Affordable Care Act in the landmark U.S. Supreme Court 5-4 decision last week, prompting dismay from one of the attorneys leading the challenge against the law.

“It’s very surprising, and, frankly, if that story is true it’s very, very disappointing,” Gregory Katsas of the legal firm Jones Day said Monday on CNBC’s “The Kudlow Report.”

Citing two unnamed sources, CBS News reported that Roberts initially had sided with the justices who voted to overturn the health care law in its entirety.

(Related Story: Brownback Vows No Obamacare for Kansans)

But “external pressures” eventually moved Roberts to switch his vote, according to the report.

In his opinion, Roberts appeared to suggest a desire to avoid a hot-button political issue in an election year.

He wrote, “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."

Katsas noted evidence of a last-minute change.

(Related: John Roberts Is a Super-Taxer; Mitt Romney’s Just Gotta Say No)

“The government’s tax arguments seemed to get no traction at all at the argument,” he said. “The only thing that changed from the moment of the argument, when everyone was focused on this, until later was the all-out political attack on the Supreme Court. It’s very discouraging to think that that may have worked.”

George Washington University law professor Jonathan Turley stenuously objected to the characterization of Roberts as a chief justice who paid attention to external considerations.

“What’s being suggested — even by friends of Roberts and people who like him — is offensive: To preserve the appearance of neutrality, greater collegiality and nonideological work he voted in a way he wouldn't have voted otherwise,” he said.

(Related: Obamacare's Taxes Bad for Economic Growth)

Tune in:

"The Kudlow Report" airs weeknights at 7 p.m. ET.

Questions? Comments, send your emails to: lkudlow@kudlow.com