Leaks, Counter-Leaks and the Reason for Roberts’ Switch

Amidst all of the leaks and counter-leaks about the process that led to last week’s individual mandate decision, I find it significant that the pro-Roberts counter-leakers do not contest what I think was by far the most damning claim in Jan Crawford’s original story: that Chief Justice John Roberts switched his vote not because he had a change of heart about the constitutionality of the mandate, but out of fear of attacks on his and the Court’s reputations. Indeed, some of the pro-Roberts leaking actually reinforces the notion that the latter was the reason for his switch. For example, if it is true that some two-thirds of what eventually became the dissenting opinion was initially drafted by Roberts, that makes it more likely that he had a strong belief that the mandate is unconstitutional. I doubt he would have taken the time to write a long and detailed opinion invalidating the mandate if he were not pretty clear in his mind that that was the way he intended to vote.

If fear of attacks on the Court really was his motive, it is extremely troubling for reasons I discussed here:

It is not yet clear whether Roberts really was motivated by such considerations, and we should keep an open mind on the subject…. But if reputational concerns really were at the heart of his switch, it is very sad that the highest-ranking judge in the land valued reputation more than his duty to enforce the Constitution. If fear of criticism by hostile politicians and pundits can deflect the Chief Justice from doing his duty, that does not bode well for the future.

Sometimes, the Court must strike down laws that violate the Constitution even when doing so is highly unpopular and might subject the Court to far greater criticism than Roberts would have gotten for ruling against a mandate that the vast majority of the public actually wanted to see invalidated. In this case, liberals may have been the beneficiaries of Roberts’ sensitivity to potential attacks on the Court’s reputation. In the future, it might be conservatives or others. Either way, courting popularity is not the proper function of a Supreme Court justice, at least not at the expense of his duty to the law.

I still do not think we have enough information to know what Robert’s real motive was with any certainty. The jury is still out on that question. So far, however, we don’t have any clear evidence against the claim made in Crawford’s story, and at least some circumstantial evidence backing it up.