Recent news reports purport to tell the story of the Chief Justice switching his vote while drafting what began as an opinion striking down Obamacare. CBS News says it has inside details from two sources:
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.
I have no such sources, but the internal clues in the opinions certainly seem consistent with such a switch. If it's true, I wonder whether word of the Chief Justice's wobbliness leaked.
I remember defenders of the law conducting what seemed like a weirdly belated public lobbying campaign on the Chief Justice. For example, here's CNN reporting on a Senator Leahy speech on May 14:
In a floor speech Monday, Sen. Patrick Leahy, D-Vermont and chairman of the Senate Judiciary Committee, directly addressed Chief Justice John Roberts, urging him in a sharply partisan tone to keep the law, passed in 2010, in place.
"I trust that he will be a chief justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch," said Leahy. "The conservative activism of recent years has not been good for the court. Given the ideological challenge to the Affordable Care Act and the extensive, supportive precedent, it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce."
It is unusual for a member of Congress to tell the high court how it should vote on a case during the weeks that the justices are crafting their opinion. Oral arguments were held in late March, and the court has been quietly working behind the scenes. An opinion is expected by late June. The Vermont Democrat attended the three-day oral arguments at the Supreme Court.
CNN was underplaying how unusual it is for a member of Congress to make such statements. That's because such statements are usually stupid, and particularly so when delivered weeks after the argument, with the Justices' votes already cast.
Why, I wondered at the time, would the chair of the Judiciary Committee risk the appearance of trying to harshly strongarm the Court when his remarks wouldn't make the slightest difference?
Equally weird was the senator's focus on the Chief Justice at a time when most Court-watchers still expected Justice Kennedy to play his traditional swing-vote role. But Senatory Leahy's remarks don't even mention Justice Kennedy. Instead, he zeroes in on the Chief, offering only the thinnest of justifications; here's how his remarks begin:
I was fortunate to be able to attend the argument before the United States Supreme Court on the constitutionality of the provision in the Affordable Care Act providing that individuals should take personal responsibility for paying for their health care by obtaining health insurance, or pay a fine. There was a good deal of instant analysis from commentators after the argument, including their predictions for how the Court will rule. I have not seen much devoted to the Chief Justice’s role.
That's it. The Chairman of the Judiciary Committee has not seen much commentary devoted to the Chief Justice's role in the health care case, so he decides to give a speech that reads like like it was written for an audience of one. It offers flattery and it offers threats, all of them personalized to appeal to Chief Justice Roberts alone.
Again, I wondered, why would defenders of the law be personalizing their focus so aggressively and harshly on a man more likely to be the sixth than the fifth vote for their side?
Now, though, CBS News tells us that the Chief Justice was the defenders' only hope for a fifth vote -- and one that started looking "gettable" right around the time of Senator Leahy's remarks. Suddenly, the Senator's remarks look a lot less foolhardy. In fact, they look like a miraculously prescient and well-timed gamble.
So well-timed and prescient a gamble that I can't help wondering whether it was a gamble at all.
I'd like to be wrong. A leak about Court deliberations, especially a leak that went only to one side in a pending case, would truly be a scandal.
And there are certainly other explanations. After all, every Supreme Court watcher, in the Administration and out, was probably collecting stories about the Justices' body language when healthcare came up at cocktail parties and dinners with friends. Not to mention the clerks -- twenty-somethings with a taste of importance they won't have again for decades, if at all. It might not take more than an indiscretion or two to get the Court-watchers' network humming. Maybe someone clever simply added four and one and got five. That's still a scandal, but less damaging.
Or maybe Senator Leahy is miraculously prescient.
Still, I'd love to know who persuaded Senator Leahy to give that speech.
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