Jan Crawford, who is very well connected in conservative legal circles, reports that two sources have confirmed to her that Chief Justice John Roberts did indeed change his position in the health care mandate case — and then withstood furious lobbying to get him to change it back.
Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.
“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.
This is very interesting. As Crawford notes, it is very rare for any such leaks to come out of the court. Orin Kerr thinks it’s very likely that the leak came either from one of the justices or clerks:
So who leaked? We don’t know for sure, of course. But Crawford’s story has the kinds of details that only the Justices and their clerks would likely know. The leaks go into what the Justices were thinking and what signal they meant to send with their actions. (Example 1: “There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as ‘arm-twisting.’” Example 2: “The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.”) That sure seems sounds like the kind of stuff only Justices and their clerks would be privy to. Further, I doubt Crawford would run with a story with that kind of detail that was sourced less directly. So my best guess would be that the two sources she relies on are from the among the Justices and their clerks…
Nothing quite like this has happened before, at least as far as I know, so it’s hard to guess. But hey, this is a blog, so let’s speculate anyway. If clerks did this, it was just crazy: A clerk who leaked this and is identified has likely made a career-ending move. It’s true that a group of OT2000 clerks leaked the details of the deliberations in Bush v. Gore, and as far as I know they did not face consequences. But that was in the fall of 2004, almost four years after the decision, and my sense is that at least some of the leaking clerks were already comfy in academic jobs and no longer practicing. In contrast, the health care cases just came down three days ago. If the Court still works as it did ten years ago, all of the clerks are still working at the Court: The clerks don’t start to rotate out for at least another week. Even assuming a clerk or two was so extraordinarily dismissive of the confidentiality rules to leak this, it would be nuts to leak over the weekend when you have to show up at the Court for work tomorrow.
I’m with him on this. It seems unlikely to me that a clerk would do this at this point in time. I could see it happening a few months from now, after the clerks have moved on to real jobs somewhere, but so soon after the decision? That seems like it would take extraordinary chutzpah. But the same is true of one of the justices, especially a fellow conservative justice. It really is an incredible situation, one I can’t ever remember hearing about before.