Why Did Roberts Flip?

Jul 2 2012 @ 10:22am

Jan Crawford's scoop is worth pondering:

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

Some informed observers outside the Court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the President. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law. There was no doctrinal background for the Court to fall back on – nothing in prior Supreme Court cases – to say the individual mandate crossed a constitutional line.

Orin Kerr wonders if one of the Justices leaked:

On one hand, Crawford appears to have particularly good relations with several of the Justices, especially among its more conservative members. Here’s Crawford interviewing Justice Thomas, and here’s Crawford interviewing Justice Scalia. On the other hand, leaking so directly and so soon after the decision is out would be sure to strain the relationships among the Justices. If a Justice was directly involved, it could be something that has significant negative consequences for the Justices’ collegiality and working relationships going forward.

Felix Salmon sees the story as evidence that "the Supreme Court has become infected by exactly the same partisanship which has corroded civic life everywhere else in DC. " Suderman takes Roberts to task:

[I]f the story and its speculation about the reasons behind Roberts' switch are true, then the implications are downright shocking: Essentially, it would mean that the Chief Justice of the Supreme Court was bullied into changing his position, and the ultimate outcome, on perhaps the most consequential Supreme Court case in the last several decades, because prominent Democrats and liberals threatened to throw a temper tantrum if he didn't vote the way they wanted.