It's All Politics
4:27 pm
Tue July 3, 2012

Did Roberts Flip On The Health Care Decision?

Originally published on Wed July 4, 2012 11:00 am

In the days since the Supreme Court's historic health care ruling, there has been a good deal of speculation about whether Chief Justice John Roberts changed his mind in the course of deliberations, deciding late in the game to uphold the constitutionality of most of the law.

Even before the decision was announced, conservative writers railed that liberals and the so-called mainstream media were trying to intimidate the chief justice.

To cite just two examples: After President Obama expressed "confidence" in April that the court would uphold the law, Sen. Mike Johanns, R-Neb., accused the president of "threatening" and "intimidating" the court. And Randy Barnett, the legal architect behind the challenges to the law, accused liberal commentators of trying to "intimidate or threaten the Court with dire political consequences should it fail to uphold legislation that they strongly favor."

After the decision was announced, showing Roberts as the fifth and deciding vote to uphold the individual mandate under Congress' taxing power, many conservatives began claiming that Roberts switched his vote midway through deliberations — a charge now backed by a CBS report that Roberts changed his mind.

The question of a vote switch in many ways misperceives how the Supreme Court works. The justices take an initial vote right after the case is argued. If the chief justice is in the majority, he assigns who will write the opinion. Roberts did that, and assigned the majority opinion to himself, as one would expect for such a major decision.

It is not uncommon for a justice to change his or her views as the opinion drafts are circulated. Usually, it is not the opinion writer who vacillates, but there are many famous cases of an opinion writer starting out in one direction and ending up in another.

In the 1992 abortion case Planned Parenthood v. Casey, for instance, the initial vote in conference was, in essence, to reverse Roe v. Wade. But three justices eventually coalesced around an opinion to uphold what they called "the core of Roe," while partly trimming it back. And those three, coupled with the two justices who voted to uphold Roe entirely, composed the majority.

In another case, Lee v. Weisman, which tested the constitutionality of a prayer at a public school graduation, Justice Anthony Kennedy initially voted to allow the practice and was assigned to write the opinion for the five-justice majority. But as Kennedy later told his colleagues in a memo, his "draft looked quite wrong." He changed his mind, and ended up writing the opinion for a different five-justice majority, holding the practice unconstitutional.

This term's health care case had many more moving parts than most cases. The question of the mandate was just one of many the court had to address. After doing more than a dozen interviews, most off the record, I think it is fair to say that from the beginning, there were five votes, including Roberts', for the proposition that the Commerce Clause of the Constitution could not support the mandate. More ambiguous, however, was where Roberts stood on the question of whether the mandate could be upheld under Congress' taxing authority — a question that clearly interested him during oral arguments.

Since the announcement of the court's decision last week, conservatives have been pushing the notion that Roberts did something of a last-minute flip. But the evidence to support that is less than convincing.

For example, writers have noticed that the four dissenting conservatives call Justice Ruth Bader Ginsburg's decision "the dissent," when in fact she was among the five-justice majority that voted to uphold the law. But the first reference to the Ginsburg dissent by the conservative minority refers to her dissent from the chief justice's opinion on the Commerce Clause. She and the court's three other liberals would have upheld the mandate as a legitimate exercise of Congress' commerce power. On this point she was writing a dissent.

The question remains: Did Roberts change his opinion at some point after the first conference on other questions, including the taxing power? I think there is a kernel of truth to the notion that he did, but again, these things are not like legislative votes. If, as seems likely, Roberts was somewhat ambiguous about his views on the taxing power, after mulling over the issue, talking to colleagues, it seems clear that by the time he circulated his first draft, probably sometime in May, he was not ambiguous. At that point, the court's four conservatives realized they had lost, and they were probably quite angry.

Justices are human, and when there is a big, historic case where there is the press of time, like this one or Bush v. Gore, there are hard feelings in the immediate aftermath.

What is unusual here is the apparent attempt to undermine the chief with a leak more typical of political combat.

Nobody knows definitively who the source of the leak is. But the CBS reporter whose story was based on the leak, Jan Crawford, is well-liked by conservatives. She reported that she had two sources "with specific knowledge of the deliberations." That could be a law clerk or a justice's spouse, or even a justice. Or maybe someone else at the Supreme Court.

Regardless, what is amazing is that this sort of fight has gone public, at an institution that is usually impervious to leaks. It's even more amazing that the leak was targeted in a way that is clearly meant to detract from the good reviews the chief justice was getting in many quarters — and not just liberal quarters.

After the decision, Roberts got a lot of credit for finding a way to keep the court out of the partisan fray, avoiding a decision along party lines, while at the same time setting down some new, and for liberals, troubling markers limiting congressional power in the future.

Indeed, liberals have worried aloud about what the future holds, based on those markers. But there is precious little liberal hand-wringing about the fact that two of the court's liberals — Stephen Breyer and Elena Kagan — joined Roberts and the conservative majority in concluding that the Medicaid expansion was too coercive.

In contrast, many conservatives, particularly movement conservatives, see Roberts' conduct as an act of incredible betrayal. From Rush Limbaugh to The Wall Street Journal editorial board, to former Bush officials John Yoo and Marc Thiessen, there is a fury at the chief justice for, in essence, being more loyal to the Supreme Court as an institution than to an ideology.

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Transcript

MELISSA BLOCK, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

ROBERT SIEGEL, HOST:

And I'm Robert Siegel.

In days since the Supreme Court's historic health care ruling, there's been a good deal of speculation about whether Chief Justice John Roberts changed his mind in the course of deliberations. Even before the decision was announced, conservative writers railed that liberals, and the so-called mainstream media, were trying to intimidate the chief justice.

Well, we've invited the always intimidating NPR legal affairs correspondent Nina Totenberg to help sort it out.

(LAUGHTER)

SIEGEL: Hi, Nina.

NINA TOTENBERG, BYLINE: Hi.

SIEGEL: Let's start with the notion that the chief justice changed his mind. Did he? And is there anything wrong with that if he did?

TOTENBERG: Well, this whole question in some ways misperceives the way the Supreme Court operates. Yes, there is a vote in conference after the case is argued and, after the vote, the chief justice, if he's in the majority, assigns the opinion. And he did that in this case and assigned it to himself, which you would expect in a major opinion like this.

But this case, more than most, has a lot of moving parts and justices sometimes do change their minds on many aspects of a case, as they think about the issues, consult with colleagues and circulate drafts.

SIEGEL: One argument I've seen on behalf of the idea that Chief Justice Roberts flipped is that the minority opinion, the conservative justices refer to Justice Ginsburg's dissent. Whereas, as things turned out, she was in the majority, along with the chief justice, upholding the law.

TOTENBERG: But if you look carefully, the first reference to Justice Ginsburg's opinion refers to her dissent on the Commerce Clause. And she was in minority on the Commerce Clause. She lost that part. And so it sort of evaporates as an argument.

SIEGEL: Now, there is one report out there by CBS, saying that the chief justice did change his mind. After spending some time reporting this story yourself, what do you think?

TOTENBERG: Well, I think there's a kernel of truth to the story. But again, these things aren't like a legislative vote. I think that the chief justice was always clear that the mandate could not be justified as a legitimate exercise of the Commerce Clause. But I think he was probably somewhat ambiguous as to what his position was on the taxing power, which he ended up saying did allow the mandate.

And I think that by the time he circulated his first draft, probably some time in May, the court's four conservatives realized that they had lost and were probably pretty mad.

You know, Robert, justices are human. And on a big case, where there is a press of time, like this one, or Bush versus Gore, there are hard feelings. But what's unusual here is the apparent attempt to undermine the chief with a leak more typical of political combat.

SIEGEL: Yes, as you say, the leak does seem aimed at somehow discrediting the chief justice. The CBS story cited two sources with, and I quote, "specific knowledge of the deliberations." Who could that be?

TOTENBERG: It could be a law clerk or, I suppose, even a justice, or maybe even a spouse. But it really is amazing that this sort of fight has gone public and in a very targeted way, with a leak to a reporter who is well-liked by conservatives, and a story that's clearly meant to detract from the good reviews the chief justice was getting in many quarters, and not just from the so-called mainstream media.

After the decision, he got a lot of credit for finding a way to keep the court out of the political fray, leaving policy decisions to Congress, while at the same time setting down some new and, for liberals, troubling markers limiting congressional power in the future.

SIEGEL: Nina let me ask you about the notion that the chief justice was intimidated by commentary in the press, intimidated into changing his mind.

TOTENBERG: Well, for weeks, even months, conservatives have been writing that liberal commentators and politicians were trying to essentially scare the chief into upholding the law. And I suppose that liberals would reply that they're entitled to express their views just as conservatives are and that their views aren't aimed at intimidating anyone.

But for some conservatives, in the aftermath of the decision, there is this sense of incredible betrayal, particularly among movement conservatives; from Rush Limbaugh and Glenn Beck to people like former Bush administration official John Yoo. There's a kind of fury at Roberts for, in essence, being more loyal to the Supreme Court as an institution than to an ideology.

SIEGEL: Thank you, Nina

TOTENBERG: Thank you.

SIEGEL: That's NPR legal affairs correspondent Nina Totenberg. Transcript provided by NPR, Copyright NPR.

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