Roberts's Switch in Time

Jan Crawford has a blockbuster story in which two sources confirm what many people inferred from the structure of the opinions—that Chief Justice John Roberts initially voted to strike down at least some parts of the Affordable Care Act before switching his vote. The story reveals some interesting things about Roberts and the Supreme Court, although we should also be careful about taking all the claims at face value given that they clearly reflect the positions of justices and/or clerks with an ax to grind.

The most obvious takeaway from the Crawford piece is that there was a fairly substantial rift created on the Court by Roberts's eventual decision to uphold the bill. While some details about the internal deliberations of the Court generally leak out eventually—as clerks have less to fear in terms of reprisals or as court papers are released by retired justices—for these details to emerge less than a week after a decision is handed down is extraordinary. Clearly, some of the conservative justices directly talked to Crawford or implicitly or directly allowed their clerks to do so. The four conservative justices who authored the radical joint dissent appear to be the equivalent of the maximalist conservatives in Congress. They were apparently not willing to accept striking down only parts of the ACA—although Roberts, seeking as much consensus as possible, might have gone along with a narrow opinion inflicting more damage on the bill—and ended up with a straightforward loss. It also seems likely, as Linda Greenhouse suggested, that news of Roberts's switch was leaked to conservatives in the media who responded with preemptive attacks on Roberts for caving. The timeline established in the Crawford article is consistent with the pattern uncovered by Greenhouse.

In terms of Orin Kerr's question about who did the leaking, it seems pretty clear that Justice Anthony Kennedy was one of the sources. Crawford's portrayal of Kennedy attempts to put him in the best available light to the conservative audience the leakers are trying to speak to, and her article has a lot of praise of Kennedy not obviously related to the story at hand. Some of this defense of Kennedy is, it should be noted, factually dubious.

When Crawford says that Kennedy has been "remarkably consistent" on federalism issues, she's insulting the intelligence of her audience—in the most prominent case in which Kennedy had to evaluate the priorities of a Republican administration on federalism grounds, Kennedy of course sided with the federal government, although the suppression of marijuana grown for personal use has a far more tenuous relationship with interstate commerce than the Affordable Care Act. But this implausible claim about Kennedy is revealing about who leaked and what they're trying to accomplish. The other key question raised by Crawford's scoop is Roberts's motivation. Some conservatives are trying to sell the idea that Roberts was unduly influenced by the dread Liberal Media. A credulous Peter Suderman sees this spin as plausible, suggesting that "the Chief Justice of the Supreme Court was bullied into changing his position."

But even leaving aside the obvious fact that liberal op-eds are not in a position to "bully" a Supreme Court justice—there's little reason to believe that this had a significant effect on Roberts. Roberts could not have been surprised that striking down the signature domestic policy of an incumbent administration for the first time in nearly 80 years would produce substantial criticism, and his sensitivity to the liberal media has not been demonstrated previously during a tenure in which he's cast conservative votes with remarkable consistency.

While no one thing can explain Roberts's decision, it seems much more likely that Jeffrey Rosen was in fact onto something—that when Roberts saw himself as a John Marshall figure preserving the integrity of the Court, he took it seriously. Roberts's decision, as several observers have noted, was classic Marshall. Both the application of an idiosyncratic read of the law to avoid a high-profile conflict with an incumbent administration and the attempt to push the law in a favored direction in the long term while conceding the short-term issue at hand were the hallmarks of many of Marshall's landmark opinions. The fact that Roberts was citing the virtues of Marshall's institution-building years before the fact doesn't seem like a coincidence. What Roberts felt were the responsibilities of his role as chief justice were almost certainly much more relevant to his though processes than the possibility that Adam Liptak might say something critical about a decision striking down the ACA. One final point to be made is that while occupying the office of chief justice seems pretty clearly to have influenced Roberts, the trappings of the position were not not able to influence the other justices. Despite what seems to have been an extensive effort to get more consensus, Roberts was able to get no votes for his commerce-clause position and only two votes for his hair-splitting striking down part, but not all, of the use of spending power to strike down Medicaid.

While one common reaction to last week's remarkable ruling has been to say that Roberts has finally placed his stamp on the Court, in a way this is misleading. Ultimately, the chief justice is just one vote, and in this case he affected the outcome not by using any authority deriving from his position but by finding, in the way that median votes generally have, common ground with another faction of the Court. Roberts influenced the way he'll be viewed in history not because he is chief justice but because he felt compelled to play the role we might have expected Kennedy to play.

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