Did Roberts really switch his vote for political reasons?

posted at 8:21 pm on July 2, 2012 by Allahpundit

At Bench Memos, Matthew Franck makes the case that there’s less to yesterday’s CBS bombshell than meets the eye:

But what does Crawford actually claim to know? Just the following:

that Roberts held one view in March, and a different one in May;

that one or more of the four conservative justices, notably including Kennedy, tried to win him back to their view;

that a month of trying to persuade him failed;

that Chief Justice Roberts “pays attention to media coverage.”…

This morning I reread the portions of Chief Justice Roberts’ opinion, and the dissenters’ opinion, pertaining to the taxing-power issue over the mandate. The second time around, I am more convinced than ever that Roberts has a fully plausible case that can be defended on principled grounds. That is not the same as an endorsement of its merits on my part, over against the dissenters’ view. But I do think that people might, just might, give him some credit for doing his duty to the rule of law as he understands it.

Another thing, says Franck: If Roberts ruled the way he did for purely political reasons, he was awfully dumb to do it so transparently, no? By switching late in the game and pissing off the conservative bloc, he all but assured the sort of irritated whispers that landed on CBS’s website yesterday, which will end up undermining his and the Court’s legitimacy. Totally counterproductive for a jurist-politician who’s concerned with the judiciary’s institutional credibility, which is why Franck thinks maybe he really did end up ruling on the merits. I don’t quite buy that, but he’s right that the “Roberts got scared” theory depends in part on the chief being an idiot, which no one believes. Surely Roberts realized from the beginning that there’d be a ferocious media campaign for the Court to uphold ObamaCare; the thought of the chief justice, who’s spent his entire career inside the Beltway, somehow underestimating the motives of the political press corps in a case this big is unfathomable. Was he watching “Hardball” one night in May when it suddenly occurred to him that if he rules the wrong way, the Times and MSNBC would call him a hack?

Don’t forget, either, that he’s stared them down before. Roberts voted with the right in the Heller case, which found an individual right to bear arms in the Second Amendment, and in Citizens United. He’s not afraid to break the media’s tender Democratic heart, and he had plenty of political cover to do it again here since Mr. Moderate himself, Anthony Kennedy, was firmly on the side of striking down the law. (Had Roberts stuck with his initial vote, it’s probably Kennedy who would have drawn most of the left’s opprobrium in the aftermath of the ruling.) Also, contra Ace, I don’t think his O-Care decision heralds a new dark age of 5-4 liberal decisions. If he had wanted to fully ingratiate himself with the left, he had an easy route: Simply join the four liberals in finding that the mandate was constitutional under the Commerce Clause too. He refused, even after the conservative bloc was so annoyed with him that they refused to acknowledge his opinion in their own draft. All of which is to say that if Roberts switched for political reasons, I don’t think it’s because he cares about Beltway cocktail parties. He cares that the Court be perceived as a nonpartisan/impartial broker and a huge surprise on a landmark case that everyone figured for a party-line vote is one way to do that. That doesn’t justify him voting for political reasons, assuming that he did, but I think it’s more complicated than Roberts wanting to impress the liberal intelligentsia.

My problem with Franck’s theory is that it doesn’t explain the tone of the conservative opinion. They were obviously royally ticked off; in her CBS piece, Jan Crawford notes how unusual it was that the dissent was unsigned and cites sources claiming that the four justices deliberately omitted references to Roberts in order to signal that they “no longer wished to engage in debate with him.” Over the weekend, Mark Levin flagged the fact that the four refused to join Roberts’s opinion even on the key point on which they agreed, that the mandate is an unconstitutional use of the Commerce Clause. The opinion seems to have been written as an expression of aggravation, all the more so in light of the quick leaks from the Court about Roberts flipping. Simple question, then: If Scalia, Kennedy, Thomas, and Alito thought that Roberts had switched his vote in good faith, because he had honestly seen the merits of the tax argument, would they still have gone this route? Kennedy himself famously switched his vote in the Casey case that upheld Roe 20 years ago; for him to join a dissent that treated Roberts as if he wasn’t worth taking seriously suggests something unusual was going on, as if they thought his motives were illegitimate too and wanted to convey that by refusing to engage with his arguments. (Crawford writes, with exquisite vagueness, “At least one conservative justice tried to get him to explain it, but was unsatisfied with the response.” Unsatisfied with Roberts’s legal reasoning or unsatisfied with his apparent motive?) Hard for me to believe they would have shown this much pique, even in a big case, simply because Roberts flipped.

I think Jonathan Adler’s theory makes the most sense. Roberts didn’t get cold feet because he was worried about a nasty article about him appearing in The Nation, he did it because he couldn’t bring himself to torpedo a democratically-passed law this prominent, especially with voters able to elect a legislature devoted to repeal four months from now. That’s not an excuse — the guy had to re-write the statute to find that way on the tax question — just an explanation. Exit question via Orin Kerr: Who leaked?


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