Report: Chief Justice Roberts switched vote on health care

This is a rush transcript from "Your World," July 2, 2012. This copy may not be in its final form and may be updated.

NEIL CAVUTO, HOST OF "YOUR WORLD": Chief Justice John Roberts knew he'd tick off conservatives over this health care ruling, but to have Grover Norquist longing for Harriet Miers? Oh, my.

And, oh, by the way, that was over the decision itself. Now imagine conservatives' new outcry over how that decision was made. Reports that Justice Roberts originally aligned himself with conservatives on the court against the health care law's so-called mandatory option, before switching sides and alienating many of his colleagues in the process, proof, court critics say, justice may be blind but does not mean it still can't be politically crass.

Welcome, everybody. Glad to have you. I'm Neil Cavuto.

And this is a mess. It's a mess. A court in crisis and reports of a chief justice like a weather vane in a storm.

Count a certain constitutional scholar and friend now in a rage. Radio talk show host Mark Levin says forget about an administration too focused on optics. A Supreme Court chief justice even more so is much more worrisome and much more frightening.

The best-selling author of among others -- talk about a prescient book -- "Men in Black: How the Supreme Court Is Destroying America," says these latest developments confirm his worst suspicions.

Well, Mark, I've been hearing you talking about this. You haven't cooled down yet, have you?


Because the Constitution, Neil, is the difference between a civilized society that preserves individual sovereignty and tyranny, the rule by iron-fisted masterminds. And when we have a chief justice of the United States who abandons his principle and frankly abandons the Constitution and rewrites it as if he's a one-man constitutional convention, that's tyranny.

It's flat-out tyranny. And I hear all the talk about the politics of it is it a tax, is it punishment? Let's call it a cucumber. OK, let's pretend it's a cucumber. The fact of the matter is what Roberts did -- and the four leftists on the court went along him -- is to concoct an argument out of a provision of the Constitution and rewrite the Constitution, rewrite the statute.

And we are -- and now we have ObamaCare. And here's the problem-- Even if we repeal ObamaCare, how do we repeal this decision and how do we shut the door that he flung open to all this enormous power the government will have against the individual now?

CAVUTO: But you know what's interesting in this story? You and I can get into the mechanics of how he limited to attacks to keep it within the proviso of Congress and all that, stuff you're infinitely more aware of and on top of than I'll ever be, but on this other point that he might have switched sides and that of all people it was Justice Kennedy trying to get him back, that shows the court might be more focused on optics than we know.

LEVIN: It sounds like Kennedy was focused on the Constitution, and I think the chief was focused on optics.

Every indication is from Jan Crawford, but even more that that -- people who are used to reading these opinions can see how the four dissenters were absolutely furious. And I mentioned this on my Friday show. I have no inside information, but you could tell they were furious with Roberts, because I think they were -- they thought he was playing optics, and he was.

CAVUTO: Yes. Well, you were on this before anyone. It struck me that what did you know? Because we only got indications of this ourselves just in the last 24 hours, so my hat's off to you on that.

But I do want to know what to make -- you know how the court arrives at decisions. I can't imagine this is the first time it hasn't been concerned about appearances and how it looks.

LEVIN: It hasn't. And this is why the court doesn't deserve the reverence that it gets. To be perfectly honest with you, we've had slightly over 100 justices over the course of our history.

Some of them have been brilliant and principled and upheld the Constitution. Some of them have been vain, senile and crooks and unethical. So, they're human beings, and they're imperfect as the rest of us. God didn't imbue them with more wisdom and judgment than the rest of us.

They happened to go through a process. They get through it and they get to put on black robes and we expect them to adhere to the Constitution. And yet there are many, many cases in history, Dred Scott, promoting slavery, Plessy, upholding segregation, Korematsu, upholding FDR's internment of Japanese Americans, Roe v. Wade and others, where the court has done terrible, terrible things.

It’s done very good things too. But it does not deserve the reverence that we give it and John Roberts had demonstrated exactly why. He went political. He went towards self-promotion. He wants his image to be positioned in a certain way, in my opinion.

CAVUTO: But to what end? But to what end? What would he gain with that?

LEVIN: They like to have these courts named after them. There's really only a handful of chief justices whose courts you can even think of. You can think of the Marshall court, right? You can think of the Warren court. You can think of the Rehnquist court. And there've been...


CAVUTO: But he's a young guy, Mark, I mean, what, 56, 57. He conceivably could be in there for another 20 or more years.

LEVIN: Yes, what a damn disaster.


CAVUTO: Well, whatever, but it would be the Roberts court, right?

LEVIN: It'll be the Roberts court, but it will be a court of jesters if this continues, because I'm going to tell you something.

This is the most reckless, activist decision -- people have said it and they're exactly right -- since Roe v. Wade. I've never seen anything like this.

CAVUTO: Yes, but turn around -- a guy I will be talking to in a couple minutes, I know you like him, he's a big fan of yours, Charles Payne, had said, now maybe Roberts is being clever by a factor and a half here, that he might be throwing it back in Republicans' lap in Congress. It could be a galvanizing issue for them.

Charles will paraphrase whether I'm right in the way he paraphrased it, but that that could be his modus operandi and it's quite successful because it has galvanized Republicans.

LEVIN: Well, if that's his position, he should either resign or be impeached, because that's not what justices...

CAVUTO: Charles Payne or the justice?

LEVIN: No, Charles Payne -- I love Charles Payne.



CAVUTO: Because we have often suggested that for him, but I guess you're focused on the judge. Go ahead.


Now, Roberts, because that's not the job of a judge to throw it here or throw it there or throw it anywhere. The fact of the matter is his decision can't be thrown anywhere. His decision, apart from ObamaCare, has perverted the Constitution and opened a gaping hole and further diminishes it.

So, you can't throw it at the Congress to fix right now. That was his job and he fell on his job. And if it's the job of -- and if we buy the argument that he was throwing it to the political branches and so forth, he concocted -- he rewrote the statute. He concocted an argument to do it. We don't believe that justices should do that, no matter whether the...


CAVUTO: Do you think then, Mark, he was driven by -- you and I have chatted about this before, you know, the Bush/Gore decision, the Citizens United, that he didn't like being typecast, that he didn't like being the judge on the right and he felt that this was his moment to rise above that or be above that? You think that's a dangerous way to make decisions. Right?

LEVIN: Yes. I think he reads tea leaves and I think he's turns out extremely political, to my great chagrin.

I think he reads the media. I think the libs know that. And the libs, like the mob, they will be in for the next decision. This is just the first. They will want more from him.

And, unfortunately -- this is why I argued six or seven years ago, "Men in Black" -- and I'm going to reintroduce this argument, term limits for justices. If justices want to be political, then they shouldn't serve for life, because the American people deserve better than this.

And that's the bottom line. Whatever Roberts thinks, whatever we call this, a tax, a punishment, a cucumber, the fact of the matter is we, the American people, deserve public officials, whether they're elected or appointed for life or for limited terms, who are going to uphold our institutions. And if they're not going to do it, there's 312 million Americans. We'll find some who can.

CAVUTO: Do you think, finally, there's anything to be said of -- we have a history of justices who we think we're getting one thing -- Justice Souter comes to mind -- and we get another. Justice Kennedy, we thought we thought we were getting one thing and then in this case we got apparently another. Justice Roberts, we thought we were getting one justice, we got another.

Can the job evolve them? And is that such a bad thing

LEVIN: Isn't it interesting? All the justices you mentioned were nominated by Republicans.

I can't think of a Democrat president putting a Democrat on the bench any time in the last 40, 50 years who disappointed the left. They're hard- line. They go down the line.

CAVUTO: That's very interesting.

LEVIN: Now, conservative or a constitutionalist, all the pressure from academia, that is law schools and the media, goes one way and some of them buckle. That's why guys like Alito, Scalia and Thomas and in this case Kentucky deserve our praise. They withstood the firestorm. They did a great job.

CAVUTO: I didn't think about that. That's a very good point.

Mark Levin, always good chatting with you, my friend.

LEVIN: God bless, brother. Take care.

CAVUTO: All right, Mark Levin.

If any of you have not been able to have the pleasure of listening to his show, he's been all over this and just rabid about it. And a lot of these machinations that now are coming on Justice Roberts; he was talking about last week, last week.

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