Yesterday, Jan Crawford of CBS News reported that Chief Justice John Roberts switched his vote in order to uphold Obamacare. Crawford appeared on Face the Nation to briefly discuss her report. Both before and after her story broke, a variety of commentators offered theories about the chief justice’s switch:
David Bernstein of George Mason University Law School, writing on the Volokh Conspiracy, cites three clues within the dissent, which point to the conclusion that this opinion was meant to be the opinion of the Court. From the Bernstein piece:
1. The dissent has a whole section on severability that is completely beside the point except on the assumption that the mandate had been struck down, and now “We” have to decide whether and what to preserve of the rest of the act now that the mandate is gone.
2. Notice also that his response to Roberts is tacked on at the end, rather than worked into the body of whatever he was writing (see page 64 of his dissent). For example, one would have expected Scalia to directly take on Roberts’ application of the Anti-Injunction Act, but his brief section on that act only mentions what “the Government” argues (see pages 26-28).
3. On top of that, Scalia’s sections on the Commerce Clause and the Medicaid Expansion are just as long or longer than what Roberts writes (Scalia wrote 16 pages on the Commerce Clause and 21 pages on the Medicaid Expansion, compared to Roberts’ 16 pages and 14 pages respectively). Yet Scalia never writes in the vein of saying, “I agree with the Chief Justice’s opinion, but write to add a crucial discussion of some complexity.” His analysis agrees with Roberts, and makes essentially the same points in “We” language. There’s no reason for Scalia to do this at such length, unless his opinion is what came first.
On NRO’s Bench Memos, Ed Whelan has argued in a similar vein (and was referenced by Professor Bernstein) that sections within the dissent and Ginsburg’s concurrence indicate that the original opinion of the Court was similar to the dissent.
Orin Kerr of George Washington University Law School speculates on the Volokh Conspiracy that the quality of the inside information in Crawford’s report places the sources as either the justices or their law clerks, but given that such leaks would probably be a career-ending move for the clerks, it was probably the conservative justices themselves.
A New York Times column by Linda Greenhouse links a number of pieces by prominent conservatives written around Memorial Day to the ongoing changes in Roberts’s position, which was morphing after public attacks by the president and Democrats. From the Greenhouse piece:
Although the court has been famously leakproof, Mr. Will and some of the others are well connected at the court, and I wondered at the time whether they had picked up signals that the chief justice, thought reliable after the oral argument two months earlier, was now wavering, and whether their message was really intended for him.