Unprecedented?

CBS News is reporting that sources says Chief Justice Roberts changed his vote for fear of the Court looking to activist.

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 language in the dissent was sweeping, arguing the Court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia – and then, there is Justice Kennedy.

“The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril,” the dissent said. “Today’s decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it.”

Orin Kerr at Volokh Conspiracy asks ”Who Leaked?”

Jan Crawford’s remarkable story on the Chief Justice’s vote prompts a bunch of questions. I’ll start with one: Who leaked the details to Crawford so soon after the case was handed down? If you stop and think about it, the leak is pretty incredible. It offers the details of the Justices’ deliberations in the highest profile case in recent memory just three days after the decision was handed down. I can’t remember anything quite like that.

So who leaked? We don’t know for sure, of course. But Crawford’s story has the kinds of details that only the Justices and their clerks would likely know. The leaks go into what the Justices were thinking and what signal they meant to send with their actions. (Example 1: “There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as ‘arm-twisting.’” Example 2: “The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.”) That sure seems sounds like the kind of stuff only Justices and their clerks would be privy to. Further, I doubt Crawford would run with a story with that kind of detail that was sourced less directly. So my best guess would be that the two sources she relies on are from the among the Justices and their clerks.

Can we get more specific? Again, we don’t know. Nothing quite like this has happened before, at least as far as I know, so it’s hard to guess. But hey, this is a blog, so let’s speculate anyway. If clerks did this, it was just crazy: A clerk who leaked this and is identified has likely made a career-ending move. It’s true that a group of OT2000 clerks leaked the details of the deliberations in Bush v. Gore, and as far as I know they did not face consequences. But that was in the fall of 2004, almost four years after the decision, and my sense is that at least some of the leaking clerks were already comfy in academic jobs and no longer practicing. In contrast, the health care cases just came down three days ago. If the Court still works as it did ten years ago, all of the clerks are still working at the Court: The clerks don’t start to rotate out for at least another week. Even assuming a clerk or two was so extraordinarily dismissive of the confidentiality rules to leak this, it would be nuts to leak over the weekend when you have to show up at the Court for work tomorrow.

The other primary possibility is one or more of the Justices themselves. On one hand, Crawford appears to have particularly good relations with several of the Justices, especially among its more conservative members. Here’s Crawford interviewing Justice Thomas, and here’s Crawford interviewing Justice Scalia. On the other hand, leaking so directly and so soon after the decision is out would be sure to strain the relationships among the Justices. If a Justice was directly involved, it could be something that has significant negative consequences for the Justices’ collegiality and working relationships going forward.

Stay tuned, as always.

7 thoughts on “Unprecedented?”

  1. So image trumps conviction and doing one’s job properly. Great. We’re in good hands, alright.

  2. How could something that was officially and explicitly NOT supposed to be a tax be taken for one? Answer: Because that was convenient and allowed Roberts the requisite loophole. The guy is simply WEAK. You can see it in his face.

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