It wouldn’t be the first time he’d — allegedly — joined with the conservatives in a case boiling with political repercussions only to think better of it and swing around to the liberal position. Everyone’s heard the stories by now about Roberts supposedly wimping out in the ObamaCare ruling seven years ago, initially agreeing with Scalia, Kennedy, Thomas, and Alito that the individual mandate was unconstitutional and then getting cold feet. Result: A tortured and dubious majority opinion upholding the constitutionality of the mandate as a tax. Rumors swirled within days of the decision that Roberts had switched his vote because he feared the Court would be attacked as a partisan institution if the five Republican appointees joined to kill Obama’s signature legislative achievement.
But Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.
There were countless news articles in May warning of damage to the court – and to Roberts’ reputation – if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.
Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.
It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.
No one outside the Court knows why or even whether Roberts switched his vote. But the perception of him ever since among righties is that, ironically, for all his concern about the Court being perceived as “politicized,” his alleged switcheroo is one of the most glaring examples of judicial politicization in American history. If Roberts is casting his votes based not on the merits of the parties’ arguments but on how he thinks partisan critics are likely to react then politics is guiding his deliberation. Not in a straight-line “Republican appointee must vote Republican” way but in a circuitous “Republican appointee occasionally must vote Democratic to preserve perceptions of institutional integrity” one.
Did it happen again in the controversial ruling earlier this summer about Trump’s power to include a citizenship question on the forthcoming census? That decision resembled the ObamaCare ruling in that both were written by Roberts and both began with arguments for the conservative position. The individual mandate is unconstitutional as a function of Congress’s Commerce Clause power, Roberts agreed in 2012; the president does have the power to add citizenship questions to the census, he conceded this past June. But, he went on to say in the ObamaCare decision, the mandate is valid as a tax. But, he went on to say in the census decision, the Commerce Department appears to have been deceptive in its reasons for wanting to add a citizenship question to the census. In both cases, it seemed as if Roberts was persuaded by the logic of the conservative view before conveniently finding an argument that allowed him to avoid joining in what would have seemed like a highly partisan decision.
And now here comes CNN citing sources familiar with the Court’s deliberations for the claim that Roberts switched his vote in that case too:
Chief Justice John Roberts cast the deciding vote against President Donald Trump’s attempt to add a citizenship question to the 2020 census, but only after changing his position behind the scenes, sources familiar with the private Supreme Court deliberations tell CNN.
The case was fraught with political consequences. Democrats and civil rights advocates claimed the query would discourage responses to the decennial questionnaire from new immigrants and minorities and affect the balance of power nationwide…
After the justices heard arguments in late April, Roberts was ready to rule for Ross and the administration. But sometime in the weeks that followed, sources said, Roberts began to waver. He began to believe that Ross’ rationale for the citizenship question had been invented, and that, despite the deference he would normally give an executive branch official, Ross’ claim had to matter in the court’s final judgment, which Roberts announced on June 27.
“John Roberts is the Supreme Court’s James Comey,” said a Twitter pal. Is he? In extraordinary circumstances, both men seem to be willing to dispense with institutional protocol and pull a Leeroy Jenkins in the name of some perceived greater moral/ethical/institutional good.
Right, right, we need to be fair. Caveat one: God only knows if the CNN report is true. No hard evidence exists of Roberts’s vote switch. It’s all coming from “sources” who might have axes to grind. Caveat two: A judge is entitled to change his mind. Just because Roberts switched his vote doesn’t mean he did it for political reasons, to dodge some political heat from liberals. Maybe the liberal wing of the Court lobbied him on their view and persuaded him. Caveat three: It’s not like Roberts has been a reliably anti-Trump vote on the Court. The Supremes have mostly tilted Trump’s way during his presidency. Literally yesterday Roberts sided with Trump on another hot-button political issue, whether the president has the power to summarily deny asylum claims filed by migrants who declined to seek asylum in Mexico while litigation is pending. He’s not David Souter.
But if you’re suspicious that Roberts’s supposed vote-switch in the census case had a political motive, there is a bit of extra evidence to consider. That decision was delivered on the same morning, the very last day of the term, as another closely watched political case, the one having to do with whether partisan gerrymanders can be challenged in court. Roberts wrote that one too and joined the conservatives for a 5-4 majority in ruling that gerrymanders can’t be litigated. The partisan implications weren’t perfectly clear in that one since Democrats have also engaged in partisan gerrymandering, but broadly speaking the left supported court challenges to gerrymanders and the right was more suspicious. Roberts knew the Court would take partisan flak for its decision; for him to join with conservatives again for another 5-4 majority in the census case posted on the same day would have made the partisan criticism many times louder. “The GOP appointees are in the tank!” liberals would have cried.
And so, insofar as Roberts may have felt pressure not to hand two major wins to righties in the same morning, the vote-switch in the census case seems that much more dubious. Did he decide to “split the baby,” handing the right a win on gerrymandering and the left a win on the census? Or did he really change his mind in the census ruling on the merits? Who would trust him after the reporting on his ObamaCare switcheroo?