One of the most intriguing-although admittedly speculative-topics to emerge from last week’s health care ruling is whether Chief Justice John Roberts changed his vote during the court’s deliberations, and, if he did, what might have motivated him to change his vote.
Articles in The Washington Post, the Wall Street Journal and the Volokh Conspiracy blog all sifted for hints as to whether Roberts abandoned an initial decision to overturn the health care law in its entirety (the Journal’s headline spoke of a “switcheroo”). But the most strongly worded report came in a highly unusual insiders’ account from CBS News reporter Jan Crawford, who cited unnamed sources as saying that Roberts had reversed his original vote on the case.
According to Crawford’s report, Chief Justice Roberts voted in conference to strike down the health care law, saying that a mandatory insurance requirement exceeded Congress’s authority to regulate interstate commerce. In a surprise to many, Roberts nonetheless found that Congress could use its taxing authority to encourage the purchase of health insurance, and thus upheld the law.
In this closely-watched case, word of Roberts’ unusual shift has spread widely within the Court, and is known among law clerks, chambers’ aides and secretaries. It also has stirred the ire of the conservative justices, who believed Roberts was standing with them.
After the historic oral arguments in March, the two knowledgeable sources said, Roberts and the four conservatives were poised to strike down at least the individual mandate. There were other issues being argued – severability and the Medicaid extension – but the mandate was the ballgame.
Whether Crawford’s account is accurate, several points are worth noting. Although changes of position after the initial vote are rare, justices are allowed to alter their votes during the back and forth of exchanging draft opinions. Indeed, according to numerous accounts, Anthony Kennedy did just that at another critical moment in Supreme Court history. In 1992, Kennedy first voted to strike down Roe v. Wade, but changed his mind before a final decision upheld abortion rights in Planned Parenthood v. Casey.
Other cases of intra-court vacillation are noted in insider accounts of the court, including Crawford’s own “Supreme Confict.”
Moreover, in Saturday’s Washington Post, Supreme Court reporter Robert Barnes noted that Roberts had raised the issue upon which he based his final opinion in March, during oral arguments over the health care law.
Most discussions of Roberts’ vote admit that no final certainty about his thinking is likely. Traditionally, Supreme Court justices do not elaborate on written decisions, and Roberts suggested the health care would be no different. According to the Post article, this exchange occurred the day after the ruling:
When Chief U.S. District Judge Royce C. Lamberth asked Roberts whether it ever bothered him that he “can’t respond to criticism,” the chief justice drew laughter when he simply said, “no” and turned to the next question.
Other analysis and commentary about the health care ruling was extensive.
“Roberts Signals That Supreme Court Is Independent,” David Savage wrote in the Los Angeles Times. A critical Wall Street Journal editorial was headlined, “A Vast New Taxing Power.” In the Washington Post, a column by Charles Lane was entitled, “John Roberts’s Compromise of 2012.”
“Yes, Liberals Won,” declared the headline for a column by Ross Douthat in the New York Times. Jeffrey Toobin blogged in The New Yorker, “To Your Health.” In the Atlantic online, Jeffrey Rosen wrote, “Welcome to the Roberts Court: How the Chief Justice Used Obamacare to Reveal His True Identity.”
The headline for a Minnesota Public Radio report stated, “Chief Justice’s Critics Don’t Understand What Judges Do, Gonzales Says.” An Associated Press article was entitled, “More Nuanced View of Roberts.”