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The Switch In Time That Saved the New Deal

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I have more on the revelations about Roberts’s switch. Among other things, I note that the story that some of the leaking justices/clerks want to tell — about Roberts being “bullied” by the mean liberal media — doesn’t make any sense:

The other key question raised by Crawford’s scoop is Roberts’s motivation. Some conservatives are trying to sell the idea that Roberts was unduly influenced by the dread Liberal Media. A credulous Peter Suderman sees this spin as plausible, suggesting that “the Chief Justice of the Supreme Court was bullied into changing his position.”

But even leaving aside the obvious fact that liberal op-eds are not in a position to “bully” a Supreme Court Justice—there’s very little reason to believe that this had a significant effect on Roberts. Roberts could not have been surprised that liberal editorialists would object to striking down the signature domestic policy of an incumbent administration for the first time in nearly 80 years would produce substantial criticism, and his sensitivity to the liberal media has not been demonstrated previously during a tenure in which he’s cast conservative votes with remarkable consistency.

As I say, I think it’s that Roberts actually took his image of himself in John Marshall seriously. And while I think he’s wrong to think that striking down the ACA would have significantly affected the legitimacy of the Court and is also wrong to think that his commerce clause dicta will significantly constrain future courts, what matters is not whether these perceptions are right but whether Roberts believes them. I assume that he, like a lot of legal elites, does.

A final bit of speculation about the wages of conservative maximalism: if Roberts was concerned about the Court being seen as too partisan, Scalia spending the oral arguments reading Glenn Beck transcripts couldn’t have helped and may have planted some doubt in Roberts’s mind. As I’ve said several times before, Thomas’s silence during oral argument is sometime used to portray him inaccurately as some kind of unqualified bumpkin, but actually reflects a much more sophisticated view of the significance of oral arguments than Scalia’s vain grandstanding, which in this case if it mattered at all was almost certainly counterproductive.

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