Did Roberts Change His Vote?

by Jonathan Cohn | July 2, 2012

Did Chief Justice John Roberts change his vote in the Obamacare case? Court observers were speculating about that possibility almost as soon as the five-to-four decision upholding the law came down on Thursday. And now it looks like Roberts really did switch. Jan Crawford of CBS News has the big scoop:

Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
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.

The whole story is worth reading. And, according to my law school sources, it is both plausible and credible. Crawford is known to have good connections in the conservative legal movement. Orin Kerr of the Volokh Conspiracy suggests she may have even gotten her information from some of the conservative justices themselves, which would make sense if they are as angry as she says.

Crawford’s story would also help explain a spasm of right-wing commentary appeared around Memorial Day. Linda Greenhouse of The New York Times was among those who took note of it and, after the ruling last week, she explained its possible significance.

For the theory that Chief Justice Roberts pulled back late in the process from declaring the mandate unconstitutional, the best evidence might be external to the opinion, rather than inside it. 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.

Crawford’s story suggests Roberts was worried about public perceptions of the decision and that media coverage may have played a role in changing his mind. Maybe I’m paranoid, but I’m guessing conservatives are going to turn this into an argument that liberals somehow “stole” the decision by “intimidating” the chief justice, as they were suggesting before the ruling came down. (They might be saying that already; I’m on vacation so I haven’t been reading all the commentary.) For what it’s worth, I find that hard to believe. He’s going to be chief justice for the next twenty to thirty years. Who’s going to intimidate him? He can do whatever he wants. It’s not like he has to win an election or raise money.

Roberts may have been worried about the court’s legitimacy. In other words, he may have been worried that contemporaries and historians would see a decision striking down the Affordable Care Act, particularly a decision to invalidate the entire law, as judicial overreach. But that’s precisely what Roberts should have been doing. 

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Source URL: http://www.newrepublic.com//article/104557/did-roberts-change-his-vote