In the wake of the surprising ObamaCare decision, a great deal of the post-decision commentary has focused on Chief Justice Robert’s role — and particularly on the suggestions that he switched his position mid-course:
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.
Read Jan Crawford’s full story here. An interesting aspect of the story, beyond the obvious, is the evidence the story shows of leaks from the Supreme Court — an institution that is historically known for a lack of such leaks. The Volokh Conspiracy folks have some interesting posts on the leak story, see here and here. Slate has an informative story explaining that the Court’s reputation for a lack of leaks is actually undeserved:
The Supreme Court isn’t supposed to be like other institutions. It’s supposed to be something more, a place above partisan squabbling, insulated from the unseemly back and forth of politics. The court’s nine justices are the final arbiters of our biggest legal questions, and much of their work is supposed to be done behind closed doors. They hold oral arguments and release decisions—and remain a mystery to most people.
That’s what made CBS’s Jan Crawford’s story on July 1 so shocking. Crawford reported that Chief Justice John Roberts voted to strike down the heart of the Affordable Care Act before changing his mind and siding with the court’s liberal bloc. Her story cited “two sources with specific knowledge of the deliberations” among the justices, and it noted that Roberts’ “switch” was “known among law clerks, chambers’ aides and secretaries.”
The collective reaction of pundits and legal commentators seemed to be, gasp, “How could this happen? How could the Supreme Court leak?” Harvard Law School’s Jack Goldsmith hadjust argued that the court is typically “better at stopping leaks” than other government institutions. Time’s Adam Sorensen described Crawford’s story as a “once-in-a-lifetime scoop.” Robert Shrum, like many others, described the leaks as “unprecedented.”Meanwhile, Orin Kerr, a law professor at George Washington University, wrote on the legal blog The Volokh Conspiracy that “the leak is pretty incredible” and that he “can’t remember anything quite like” it.
No doubt the leak is incredible, and no doubt the justices are good at keeping secrets. But there is nothing unprecedented about the Supreme Court dishing on what happens behind the red curtain. The court has a long and colorful history of leaks that dates back to the mid-19th century. Just like last week, leaks have sprung in the past commenting on a decision soon after the justices released it. Inside accounts of the personal relationships among the justices have long been served up to journalists. Indeed, some court opinions have leaked even before the justices had a chance to announce them.
Moving on from the leak issue, there are a great many stories analyzing the decision itself. Here are a few:
- Clark Neily questions Roberts’ potential motivation of Peace for our Time.
- Ilya Shapiro declares Roberts to be a Judicial Pacifist.
- SCOTUSblog has an extensive symposium with posts from numerous scholars.
- Peter Suderman examines the tax versus penalty debate.
- David Kopel identifies an interesting flaw in Roberts’ tax analysis.
Also interesting are the looks at the aftermath of Roberts’ switch:
- Jan Crawford notes the Discord at Supreme Court.
- Damon Root explains that the Supreme Court’s Conservatives are Mad as Hell at Chief Justice Roberts.
- Lyle Deniston considers the upcoming challenges for the Court.
It’s also worth checking out Rasmussen’s post-decision poll of the public’s view of the Supreme Court reported on July 1:
Public opinion of the Supreme Court has grown more negative since the highly publicized ruling on the president’s health care law was released. A growing number now believe that the high court is too liberal and that justices pursue their own agenda rather than acting impartially.
A week ago, 36% said the court was doing a good or an excellent job. That’s down to 33% today. However, the big change is a rise in negative perceptions. Today, 28% say the Supreme Court is doing a poor job. That’s up 11 points over the past week.
The new Rasmussen Reports national telephone survey, conducted on Friday and Saturday following the court ruling, finds that 56% believe justices pursue their own political agenda rather than generally remain impartial. That’s up five points from a week ago. Just half as many — 27% — believe the justices remain impartial. (To see survey question wording, click here.)
On an interesting end note, Tom Goldstein has a lengthy investigative piece detailing the ten minutes or so on decision day when two major news outlets actually had the story wrong.
Here’s Paul Ryan’s take (click here to view video at foxnews):