There has been tons of speculation in the last day that Chief Justice Roberts changed his vote at some late stage in the Affordable Care Act case. My co-blogger David Bernstein has had some good posts on that theory here and here. That explanation is certainly possible. When so many informed court watchers suspect that there has been a switched vote, they’re usually right. And it’s likely that Jan Crawford, Jeffrey Toobin, or someone else will eventually get the story out about what happened.
But if I had to guess, my current thinking is that Roberts probably didn’t change his vote. There are some loose ends in the opinions, to be sure, but it might just be because they were pressed for time. Here’s my contrarian speculation to add to the mix, with the caveat that with almost 200 pages of opinions there may be clues that I’m missing.
The Affordable Care Act cases were massive, complicated, and extremely important cases argued near the end of the Term in a marathon 6 hour session. Based on the oral argument, everyone knew that the Court would be sharply divided, with passionate dissents and responses to those dissents. But the Court didn’t have a lot of time to get the cases out. If the Justices met at conference in the end of March to assign cases, they would have at most three months to get all the opinions done and out by the end of June (all the while working on all the other important pending cases in the term). They would have been acutely aware of the clock.
So it might have happened like this. The Justices voted at conference and there were five votes to uphold the mandate on the tax argument and at least five votes to strike down or modify the medicaid expansion. The first group is Roberts plus the liberals, and the second group is Roberts plus the conservatives. Roberts is the swing vote in this case and this is the biggest case of his time on the Court, so he quite naturally assigns the opinion to himself. Roberts doesn’t know how many votes his opinion will get, and he tries to write in a way that might persuade some unlikely votes to join him. Maybe Justice Kennedy will change sides and make the case 6-3, which would avoid the dreaded 5-4 vote. Or maybe he can get some liberal votes to join the section blocking the medicaid expansion.
To write the opinion, Roberts needs to cover a lot of ground — anti-injunction act, tax power, medicaid expansion, etc. Roberts also writes on the Commerce Clause issue, even though it’s not needed to reach the result. Why include that section? Perhaps Roberts thinks that his middle-ground opinion that includes a section agreeing with the mandate challengers on the Commerce Clause might pick up Kennedy’s vote. Or maybe Roberts just wants to weigh in on the most high-profile legal issue of the year, which he happens to care a lot about. He’s also the fifth vote on the Commerce Clause issue and everyone else is writing on it, so he wants to make his views known. Either way, he writes a proposed majority opinion covering all the major issues.
After Chief Roberts circulates his majority opinion, the conservative dissenters decide to write a joint opinion in response. Why a joint opinion? It took Roberts a while to circulate his proposed majority opinion, so the time pressure is particularly intense on the dissenters. The dissenters have a lot to issues to cover and very little time in which to say it, and making it a joint effort allows them to pool resources. They divide the pieces with different Justices working on different issues. The result is a 65 page opinion that is a bit of a patchwork, with different parts by different Justices having different lengths and some portions not really necessary (like severability) included. Some parts may have been drafted before the Roberts opinion circulated, which might explain why parts are duplicative of the Roberts opinion. But the joint dissent is a genuine joint effort, which might explain why parts of the opinion sound like they were written by Justice Scalia and yet Justice Kennedy announced the dissent from the bench.
At the same time the conservative dissenters are writing their response to Roberts from the right, Justice Ginsburg does the same from the left. Ginsburg’s opinion ends up responding mostly to the Chief’s opinion and not the joint dissent, as many have noted. But that wasn’t because Roberts initially was on the other side. Rather, it’s because when Ginsburg was drafting her opinion, the Chief Justice’s opinion was the only one that had circulated. At that point it wasn’t clear how many votes Roberts would get, so Justice Ginsburg treated it as a potential majority opinion even though in retrospect Roberts ended up only writing for himself on the high-profile question of the Commerce Clause.
Anyway, that’s my tentative speculation, which is worth exactly as much as you paid for it. I do think we’ll probably get an inside scoop on this question eventually, but at least for now my suspicion is that the Chief Justice didn’t change his vote.