CBS News reported Sunday morning that two anonymous sources “with specific knowledge of the [Obamacare] deliberations” confirmed that Chief Justice John Roberts had a last minute change of heart on the constitutionality of Obamacare’s individual mandate, a theory that’s been floated by insiders since the ruling.
The inner workings of Supreme Court decision-making are notoriously secretive, and long-standing tradition prevents anyone with knowledge of the deliberations from discussing the process publically. As a result, Roberts’ reversal will likely never be “officially” confirmed, and the reliability of various anonymous sources will always remain in question.
This report comes after several days of speculation by Court-watchers, based on various clues within the dissenting opinions, that the initial majority opinion actually overturned the law. For example, in Justice Clarence Thomas’ two-page dissent, he refers to Justice Antonin Scalia’s opinion as the “joint-opinion” rather than the “joint-dissenting opinion.”
Such a last-minute reversal would not necessarily be unprecedented.
In Supreme Court journalist Jeffery Toobin’s 2007 expose The Nine: Inside the Secret World of the Supreme Court, Toobin claims that Justice Anthony Kennedy, the Court’s usual swing vote, engaged in a similarly dramatic reversal in the high-profile early ’90s case Planned Parenthood v. Casey.
According to Toobin, Kennedy became uncomfortable with the prospect of signing on to an opinion that would have overturned the controversial abortion case Roe v. Wade. Roe was upheld 5-4 in that case.
However, illustrating the uncertainly of anonymously sourced reports of Supreme Court deliberations, Toobin’s court expose has been fiercely criticized for its inaccuracy. (In fact, while speaking to a group of law students in 2008, I personally heard former Justice Sandra Day O’Connor suggest that Toobin’s book was dramatically inaccurate.)
Regardless of whether Roberts actually changed his opinion, theories abound as to why Roberts would abandon his conservative colleagues on the Supreme Court and rescue Obamacare.
Many conservatives are now suggesting that the chief justice felt compelled to prevent further deterioration of the court’s perceived political impartiality. Others suspect that Roberts simply lost his nerve in the face of a president that bullied the court and the nearly unanimous opinion of liberal commentators and much of the mainstream media that the individual mandate must be constitutional.
Both theories are problematic.
Contrary to the assertions of pundits who bemoan the current politicization of the court, Supreme Court cases have always been politically galvanizing. Seventy years ago, the Court so frustrated President Franklin Roosevelt’s New Deal agenda that he proposed “packing” the Court with new Justices who would uphold his legislation.
It’s also unlikely Roberts was bullied into his decision. Polls have consistently shown Americans’ lack of support for the individual mandate, and other polls have shown that a majority of Americans hoped the court would overturn the controversial law. If the law had been overturned, any criticism of the court by President Obama and others would have fallen upon deaf ears.
Whatever influenced Roberts’ reasoning, conservatives should stop pointing fingers and start reorganizing. The Romney campaign’s $4.6 million cash haul in the 24-hours after the Obamacare ruling is a good start.