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Roberts Switched


Jan Crawford has reporting that confirms what one could infer from the opinions — Roberts switched:

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.”

I believe the reporting; Crawford is well-connected, and if you can overlook her sympathy with Federalist Society legal views her book was actually very good and had a lot of interesting nuggets. Granted, you can see some elements of her biases here — Kennedy has been “remarkably consistent” on federalism cases ? — but I have no reason to doubt that she has the story right here.

There’s some other interesting stuff too — most notably, the dissent was written independently from Roberts, was written jointly, and ignored Roberts out of pique, all of which makes sense to me.

…I also agree with Linda Greenhouse that the clerks in the neoconfederate chambers pretty clearly leaked the word of Roberts’s switch before the fact, and the timeline established by Crawford adds further proof. There’s no way all those op-eds making the same arguments about the pressure on Roberts coming out right after he switched were a coincidence.

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  • Richard

    This makes sense. The switch wasn’t last minute and Roberts didn’t write the joint dissent

    • elm

      What’s interesting to me is that, if Crawford’s story is right, then all the evidence Paul, Scott, and other pointed to in order to argue that Roberts switched ended up being wrong even though they were right to think Roberts switched. The joint dissent was never the majority and Ginsburg’s concurrence was never discussing their opinion. Instead, it seems that the dissenters were pretending they were writing the majority opinion and pretending that Ginsburg’s was the sole other opinion written.

      Have we ever seen such childish behavior from the court?

      • Paul Campos

        Crawford’s story doesn’t make any sense based on the opinions that actually got produced. It reads like after the fact propaganda, probably being spread by movement conservative clerks.

        Does this read like an after the fact dissent drafted by the furious four?

        “A few respectful responses to JUSTICE GINSBURG’s dissent on the issue of the Mandate are in order.”

        Then there’s the fact that Ginsburg’s opinion is addressed by the joint dissent as if the sections in it responding to Roberts’ opinion were actually addressed to the joint dissent.

        • elm

          Right, but then why should we credit anything Crawford says? Either she’s right or you’re right. You can’t use her (and, I realize, you’re not, but Scott is) as evidence for your argument because she specifically offers a different story incompatible with yours.

          As to “Ginsburg’s dissent,” Richard has, on a number of occassionas, offered a plausible explanation for that language. I have yet to see you respond to that argument, but I might have missed it. I don’t know if you’re right or if Richard’s right, but to pretend that there is no other possible explanation strikes me as a little disingenuous.

          • Richard

            Thanks for noticing. I thought my explanation – that the four are emphasizing the fact that Ginsburgs take on the Commerce Clause did not get five votes – makes more sense than the other theories about this language. And if Crawford is right, the four aren’t pissed of at Ginsburg and therefore use the word respectful when referring to her opinion

          • Rarely Posts

            Crawford’s reporting suggests that this is the “unofficial” story that the conservative Justices want leaked. I doubt that they would want it leaked if there were no truth to it: I’d assume that it’s true that Roberts switched, for example. However, I’d take the details with a huge grain of salt, remembering that the goal of those details is to push a certain narrative.

            • Richard

              I agree. What makes no sense to me however is the original speculation by Campos and others that this was a last minute switch and that Roberts was the original author of the joint dissent

              • Lurker

                Even if Campos were right, the “furious four” would not reveal that Roberts was the author of both the dissent and the opinion. They have their pride. They wouldn’t want to give any credit in writing that piece of judicious judicial conservatism to an apostate.

  • Anshutz

    Reading the actual dissent and its reference to Ginsburg’s “dissent,” what you write makes sense. Any speculation as to why they left this dissent reference in? Seems a bit nasty to me.

    • Scott Lemieux

      Seems pretty clear that they intended to be nasty. It was a thumb in Roberts’s eye.

      • Richard

        See my comment above and my various posts. It was to emphasize that Ginsburg view only got four votes

  • dl

    Justices aren’t going to be happy with this leaking out (not to mention leaking out so fast)…

    • Scott Lemieux

      Thing is, I’m not sure that the conservative chambers are that upset about the leak. The dissent was written in a way that would effectively brand Roberts a traitor. Crawford wouldn’t have gotten the story if the conservative chambers had read their clerks the riot act.

      • dl

        as you know, the conventional wisdom has been that leaks are serious business at the court, but–who knows–maybe the conservatives are happy to try cases in the media now?

        • NBarnes

          I’ll file it under ‘So-called Conservatives Happy To Violate Standing Norms of Behavior For Transient Political Advantage’. Gonna need a new drawer for that one soon, though.

          • Holden Pattern

            Perhaps a new archive building.

            • firefall


        • Scott Lemieux

          That’s my point — usually, the court doesn’t leak, at least immediately, so when it does there’s good reason to believe that some justices are fine with their clerks talking.

          The number of conservative columns written about how Roberts should buck up last month also makes it pretty clear that the word got out to some winger sources before the fact too.

      • Warren Terra

        Are the sort of firebrand Movement Conservatives that clerk at the Court these days equally willing to be cowed into inaction by precedent and stern lectures as were their predecessors?

  • So it was Kennedy and not Obama who was bullying Roberts? Wave to that one before it goes down the Republican memory hole.

  • c u n d gulag

    Roberts may very well have switched and “ruled for the left”* on this one case -but he never doesn’t always support whatever it is corporations want.
    And the health care corporations WANT THIS!

    He did just enough real damage to Obama and the D’s with defining this as a “tax,” and limiting Medicaid, without seeming like some partisan hack.
    The R’s can now run and scream about D’s and “taxes” and spending!
    And allow their Governors and State Legislators to undermine ACA in their states, through Medicaid.

    He’s the exact same right-wing corporate feckin’ idjit and hack that he was on Wednesday!

    Plus, with this ONE vote, he’s solidified his “Centrist” bona fides with the MSM for decades – if not for the rest of his life.

    He can now vote to gut the ‘64 and 65 Civil Rights Acts, and anything else, and the MSM will say, “Well, he must know which side is right – he voted FOR ACA!”

    • Scott Lemieux

      And the health care corporations WANT THIS!

      They don’t. If the only other option was striking the mandate alone, that’s one thing, but the insurance companies wanted the whole bill struck down. It’s not like Roberts is more pro-business than Alito.

      • Warren Terra

        This. Yes, the ACA is a compromise that enshrines for the for-profit insurance companies a guaranteed place in the system, in a way that true, uncompromising Liberal ideas like Single-Payer and Single-Provider do not. But it’s not as fun a place as that which they currently inhabit: at present they’re the carefree cowboys of the market, restricting and rescinding coverage when it suits their pocketbook. The ACA promises to regulate them, to make them more reliable and transparent, to make competition among the more effective – in effect, even without a Public Option the long-term effect should be to turn them into docile Public-Private Utilities. And Utilities are fundamentally boring and predictable, and don’t offer the scope for ambition and profits available to them under their current freewheeling lifestyle.

        So, yeah: the ACA doesn’t entirely tame the insurance companies, let alone slaughter them. But it does perhaps saddle them, and they’d have been happier without.

        • James E. Powell

          Moreover, if one takes the long view, getting everyone, or as many as possible, covered by some form of health care insurance will spread the expectation of coverage. Later, there will be political demands to improve it. But first, because of the way that health care insurance developed in this country, we must get everyone covered by some insurance.


            I still think this is magical thinking.

            The ACA is worth supporting because it’s better than the alternative, i.e. the status quo ante.

            It is neither a pathway to single-payer nor a bar to single-payer. The arguments for each of these positions are pretty silly.

            • Warren Terra

              Given that single-payer is sadly fairly inconceivable under the current political landscape (heck, the Public Option and Expanded Medicare were both bridge too far), while I agree with you about the former statement, that the ACA is not a path to single-payer, I think the latter (that it in no way adds a new bar to single-payer, except perhaps by reducing the emergent nature of the need) is the more important.

        • timb

          I think this bill is the eventual death knell of insurance companies as we know them. As more small business people take advantage of the exchanges, people will start to realize that govt subsidized insurance is not the horror story Betsy and friends make it out to be.

      • c u n d gulag

        I stand corrected.

    • UserGoogol

      The idea that declaring PPACA a tax will be a political winner for Republicans really really seems to overstate the role of such bullshit political rhetoric. Republicans were perfectly free to call it a tax beforehand, and did so from time to time. Ruling that the Supreme Court is a tax isn’t really going to change ANYONE’S opinion on the bill, it’s just going to give Republicans a new talking point, and talking points are cheap.

      And “strengthening his centrist bona fides” doesn’t really seem like it’s worth much either. Making a swing to the center on a prominent bill isn’t going to give you a free ride. Kennedy didn’t get to be where he is by making one big vote, but by being the pivotal vote on a lot of rulings. And if mainstream media centrists controlled the political discourse, Michael Bloomberg would been elected President years ago. Also, he’s the goddamned Chief Justice of the Supreme Court, he doesn’t really have to care all that much about what the media thinks.

      • Scott Lemieux

        And “strengthening his centrist bona fides” doesn’t really seem like it’s worth much either.

        This. I’ve had several people ask what Roberts will do with his newfound reputation for impartiality. The answer is “exactly what he would have done and had the power to do” anyway.

  • Daragh McDowell

    Crawford frequently claims “Never before had Congress tried to force Americans to buy a private product” – without putting too fine a point on it, isn’t this just plain wrong?

    • charles pierce

      Nobody “forcing” anyone to buy anything. Jesus, this makes me nuts. Don’t buy insurance, pay a small tax penalty. And, if you don’t, nobody chases you down for it. People act like this is thumbscrews.

      • Daragh McDowell

        Well yes there’s that too. But, y’know, FREEDOM!

      • Hob

        And if they really wanted to force everyone to buy a private product, then they sure goofed by expanding Medicaid, rather than just massively subsidizing purchase of private insurance to the point where even the poorest could be required to do it.

    • John

      If the ACA forces Americans to buy health insurance, then the Homeowner tax credit forces Americans to buy houses. Except that you can be criminally prosecuted if you falsely claim the homeowner tax credit, while nothing can happen to you if you fail to pay the health insurance penalty.

    • Joe

      Yes, that continues to annoy me. There was no “Medicaid” option there either. No ability to get “coverage” (not “purchase”) on other people’s plans (no sharing militia supplies) etc.

      Even the headnotes of the opinion says:

      “The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.”

      Well, no. They can get Medicaid. They can get coverage by a spouse or parent if applicable.

      But, that’s only the reality based community. Only fools care about it.

  • Daniel

    It’s probably too much to hope that this signals a real rift between Roberts and the other four judges, but Roberts is clearly too committed to conservatism to let pique influence him.

    • dl

      on balance, you are probably right, but they probably thought the same about Blackmun too…

      one can hope, at least…

      • Charlie Sweatpants

        Well, if we’re hoping for lightning to strike twice in regards to a sitting Republican justice seeing the light, this would seem to be the key passage:

        “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.

        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 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.

          That’s happening anyway. Schumer grilled him on Wickard and the commerce clause during the Judiciary Committee hearings, and is now saying Roberts lied by saying he would be guided by precedent.

          • dl

            the funny thing is roberts actually said something like “i will treat it like every other precedent of the court” which means, in practice, “follow it when it suits my purposes, ignore it/ limit it otherwise”

    • laura

      He might be committed to conservatism, but that’s not exactly the same as being committed to Scalia/ Thomas/ Alito brand of conservatism which seems to me as much Republican partisanship as it is ideology (even radical ideology). I think (although maybe it’s wishful) that it does signal some kind of rift — and the dissenters letting the details leak probably makes it worse.

      What I’m curious about is whether there was any particular liberal judge or argument that influenced Roberts to change his mind initially.

      • Taylor

        There is speculation that Ginsberg dangled the tax angle in front of Roberts as a way of getting out of his initial opinion, and he bit.

  • Joel

    This sounds very similar to the backroom dealings with Citizens United — except that Roberts declined to take a second bite at the apple.

  • You might want to edit the post to clarify that the “Greenberg” mentioned after the block quote is the same as the “Crawford” mentioned before it — especially given that the name “Greenberg” isn’t on the article, though it is on the book. (For a moment I thought you actually meant “Ginsburg”.)

    • Alex

      According to Wikipedia, Jan Crawford Greenberg is separated and now goes by Jan Crawford.


        Also her name is, or was, “Greenburg,” not “Greenberg.”

        • Scott Lemieux


  • Walt

    That article was super-hackish. She sounds totally in the tank for the Republican party. That’s probably why she was on the receiving end of the leaks, but still…

    • Scott Lemieux

      Oh, I don’t disagree. But this was the price for getting the leaks; Toobin wouldn’t have gotten the information.

  • Alex


    Do you think Justice Scalia or another justice talked to Crawford for this piece? Her writing is always broadly sympathetic to the conservative justices, so it strikes me as likely.

    • (the other) Davis

      Why create the bad visual of a Justice directly speaking with a reporter, when you can just have your clerks do the dirty work for you?

      • Alex

        Also very possible this story is sourced on authorized leaks from clerks, but some of this sounds as though it came straight from a Justice.

        • Warren Terra
          • tonycpsu

            Why, to even insinuate that a fine, upstanding jurist like Clarence Thomas would engage in pillow talk concerning the cases brought before him on the Supreme Court…

            • Colin

              It would seem pillow talk might be the only kind of talking Clarence Thomas engages in.

            • Warren Terra

              I honestly don’t know whether it would be inappropriate for him to talk to her. She’s an attorney, she’s presumably intelligent, she’s very interested in the topic, she’s sympathetic to him and trusted by him, and she shares all his crazy, crazy psychoses and weird ideology. Maybe there’s a rule against the Justice blabbing, I dunno; but if there’s no such rule she’s the obvious person for him to talk to, and if there is such a rule she’s still the obvious person to violate it with. And she certainly has the connections to right-wing propagandists to spread the story, and is certainly of the disposition to fire up the right wing base to march with pitchforks and torches to Roberts’s house.

    • Taylor
  • jsmdlawyer

    Very persuasive stuff, Scott, including your comments above. Given all that, how long do you think it will take before the dolchstoblegende will start up on the right wing wurlitzer machine?

    • Warren Terra

      Negative four days?

      • jsmdlawyer
      • jsmdlawyer

        You are right. Remind me next time to run the Google search brforr posting the comment.

    • SeanH

      The funny letter in Dolchstoßlegende is not a B but a scharfes S /pedantry

      • Matt_L

        and the new(ish) orthography, you’d write it as a double ss anyways, thus – Dolchstosslegende

  • Sly

    So if this is Roberts Rebellion, can we start referring to Scalia as the Mad King?

    • If there’s anything scarier than Scalia with dragons, I don’t want to know what it is.

    • IM

      If we compare Roberts to anybody, Tywin Lannister and his late switch prior to entering King’s Landing fits. Also: the Late Lord Frey.

  • Joe

    I honestly had trouble getting past the conservative bias (slant?) of her book but maybe I should give it another shot. Sounds like Kennedy or one of his clerks (perhaps semi-officially).

    She talks with Dahlia Lithwick in the past here.

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