POLITICS

Ex-SCOTUS clerk Sen. Lee: If Roberts writes opinion, overturning mandate “substantially more likely”

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Politics,Beltway Confidential,Philip Klein

Sen. Mike Lee, R-Utah, a former clerk to Justice Sam Alito, said that if Chief John Roberts writes the majority opinion in the health care case, as some have speculated, it would make it “substantially more likely” that the Supreme Court would strike down the individual mandate.

Following the release of today’s decisions, SCOTUSblog’s Tom Goldstein suggested that the decision on the constitutionality of President Obama’s health care law would “almost certainly” be written by Roberts, based on the authorship of recent opinions.

“It certainly would not surprise me,” Lee told the Washington Examiner, standing outside the Court after this morning’s opinions where handed down. “It would not be unusual for a Chief Justice to assign to himself a decision of monumental importance. This certainly fits into that category.”

He cautioned, “It’s hard to speculate that just because several of the recent opinions have been authored by other justices, that that necessarily means the Chief Justice is authoring this one. But on the other hand, you can point to the fact that at this stage of the term, the court is handing down most of the opinions that have been argued later in the term. I suppose you can make a decent argument that there is some statistical likelihood of that happening. It’s really hard to predict.”

Lee said that if Roberts did write the opinion, it bodes well for opponents of the health care law.

The Senator attended the oral arguments in March and said he followed Roberts’ questioning closely and even watched his body language, facial expressions and word emphasis.

“I was strongly of the opinion that Chief Justice Roberts was skeptical, to say the least, as to Congress’s authority to enact the individual mandate,” Lee said. “So yes, if we could be certain as of this moment that Chief Justice Roberts was the author of the majority opinion of the Court, I would say that would make it substantially more likely – that would be a strong indication – that it is going to be declared unconstitutional.”

Lee pushed back against a theory being floated by some court watchers that if Justice Anthony Kennedy votes to uphold the law, Roberts may join with the majority to preserve comity by making it a 6 to 3 decision, or give him more influence over the drafting of the opinion.

“I’ve never bought that theory,” Lee said. “I’ve been surprised, I’ve been shocked at how many people have adopted that view. Some very smart people. I just completely disagree with them. I think they’re dead wrong.”

He explained, “This is a really important case. This is a case that addresses the heart of the Constitution, what I think is perhaps its most important feature, its allocation of power between competing sovereign components of our federal republic. And I don’t see the Chief Justice in such an important case switching his vote merely for what could cynically be described as aesthetic purposes, or for purposes of retaining some limited degree of control over what the opinion says…I don’t think Chief Justice Roberts is likely to shift his vote just for that purpose. This is a core part of who he is. It is a core part of how he operates as a jurist, of how he sees his role.”

I asked him about my observation during oral arguments that Roberts seemed to be speaking for himself when expressing skepticism about the Obama administration’s argument, while framing the government’s position as a devil’s advocate argument.

“I had that exact same reaction,” he said. “He spoke in first person singular when expressing concerns about constitutionality. He spoke in the third person, sort of in a hypothetical way, when making a pitch that included the government’s line. So that’s one of many reasons why I’d be very surprised if we ended up in the kind of 6-3 posture (being) described.”

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