New Leak Explains What Chief Justice Roberts Was Really Thinking in Health Care Cases (Although the Leak is Poorly Sourced)

A fascinating new leak from deep inside the Supreme Court has just surfaced on what Roberts was thinking when he switched his vote in the health care cases. Although the leak is poorly sourced and may not be reliable, I think it offers an important perspective if you’re trying to understand the switched vote (see explanation after the excerpt):

Sources with direct personal knowledge of Chief Justice Roberts’ decisionmaking in the Obamacare litigation revealed that he voted to uphold the Act in order to stay true to his principles rather than vote his political preferences in lockstep with his fellow conservatives.

According to sources, Roberts felt intense political pressure from conservative Justices, law clerks, media, politicians, and bloggers to vote to strike down Obamacare. “The entire Republican party opposed the Act,” sources tell ABC News, “and Roberts, as a loyal Republican, initially felt he had to go along.”

Roberts expressed early concern that departing from established precedent to adopted a novel “activity/inactivity” distinction was playing “gotcha” with the President’s signal legislative achievement. But Roberts was passionately opposed to the health care law on policy grounds, and he realized that he could “wipe it away” with his vote. Sources indicate that Obama’s vote against the confirmation of Chief Justice Roberts also played a role in the Chief Justice’s initial conference vote to strike down the Act. “It was payback,” our sources tell us.

After the initial vote, however, Roberts became “wobbly” after re-reading excerpts from his 2005 confirmation hearings. Roberts had stressed judicial restraint during his hearings. The often-overlooked point his comparing judging to umpiring was to note that the judges should not be a major force in political life: “Nobody ever went to a ballgame to see the umpire,” he had said. Roberts decided that his initial conference vote was political, and that the principled result was to uphold the Act.

Roberts realized that he would face a firestorm of criticism from angry conservatives for voting to uphold the much-despised legislation. He deeply opposed the legislation on as a matter of policy, as well, and was not happy to vote to uphold it. But Roberts felt that his sense of duty to the law had to trump his political allegiances and policy preferences. He reluctantly switched his vote to uphold the legislation, and circulated a new proposed majority opinion.

I said at the beginning that this leak was poorly sourced, and here’s why: I just made it up. Yes, it’s completely fake. But note that this version of the Roberts leak is entirely consistent with Jan Crawford’s published story. As Crawford says, we don’t know why Roberts changed sides.

Mandate opponents have adopted one narrative on this story. In their account, Roberts was completely principled in voting to strike down the law but then he became merely political when he switched to uphold it. This “completely undermines its legitimacy as a precedent,” as my co-blogger Randy Barnett told John Fund.

But perhaps the opposite is true. Perhaps Roberts started off voting based on his conservative politics, adopting the party-line GOP view that matched his personal policy preferences and that would make him a hero to his friends and supporters. And perhaps only later did he change his view and follow what he saw as the important principle of judicial restraint despite all the political pressure he felt to strike down the mandate.

It’s true that Crawford’s story has passages suggesting that her leakers thought Roberts was changing his vote for political reasons. But it’s easy to spin one man’s principle as another’s politics – and another man’s politics as principle. In the case of Roberts, for example, he had advocated a particular vision of the role of the Supreme Court during his confirmation hearings. It was much easier to reconcile that vision with a vote upholding the mandate than a vote striking it down. But to a critic, that vision could be dismissed as mere sensitivity to how a decision would be received. And from there it’s a short jump to imagining that Roberts was worried about the reaction of politicians and voters. Is that principle or politics? If you want to, you could spin it either way.

To be clear, I’m not saying that this latter narrative is accurate. Rather, my point is that we have no idea why Roberts switched his vote. Maybe the switch was principles to politics, but maybe it was politics to principle. Or perhaps the switch was from one principle to another principle, or from one set of political considerations to another set of political considerations. Or maybe it was a mix of all of the above. The mere fact of the vote switch does not answer why Roberts took either view. For that matter, neither does fact that the other Justices voted almost with perfect consistency the current party lines of the party whose President nominated them show that they were acting in a way that was “political” or “principled.” We can’t make out that information from their votes alone, whether those votes were consistent over time or wavered.

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