The Roberts Decision: No Switch In Time To Save Nine?

Did Chief Justice John Roberts, in a reprise of the celebrated “switch in time that saved nine”, change his vote at the last minute to uphold the Affordable Care Act?  My colleague Travis Jacobs e-mailed me early yesterday to  note an NPR report that, contrary to what some analysts were claiming based on their assessment of the written opinions in the health care case, only three days after the oral arguments last March Chief Justice Roberts had in fact voted with the four liberals judges to uphold the ACA.   That is, Roberts did not initially write an opinion to overturn the ACA only to change his mind at the last minute, as many bloggers have speculated based on how his opinion was written. Rather, from the very start, Roberts – as Chief Justice – was intent on crafting an opinion that offered something to both the liberal and conservative wings of the Court, while shielding it as much as possible from charges of partisan bias.

Shortly after Travis’ email, other news outlets chimed in with their own version of when Roberts’ made his decision. According to this CBS News story by Jan Crawford, Roberts had, initially, agreed to strike down the ACA, but he soon reconsidered and decided to uphold it, choosing to write the majority opinion himself.  That majority decision, according to Crawford, was due on June 1, which gave the dissenters until June 15 to draft a response which was written by Kennedy and Justice Scalia. In this version, then, Roberts appears to have decided relatively early to uphold ACA.

The dispute over the timing of Roberts’ decision is interesting because it reminds us that the Supreme Court is a political institution whose members often draft opinions in ways designed to attract maximum support with the goal of building a winning coalition. That is, they do not come to a decision as nine individuals, each acting independently to divine the true constitutional implications of a statute based on their own readings of the relevant case law.  Instead, they consider what their colleagues are saying, both as a means of coming to their own verdict, but also with an eye toward anticipating and shaping the final Court ruling. In this vein, it would not surprise me if all three sets of opinions – Roberts’ majority holding, and the two sets of dissents – were all crafted with an eye toward staving off defections and picking up additional votes.  Roberts, of course, with an interest in portraying the Court as above politics, wanted to avoid another 5-4 decision, while Kennedy needed a 5^th vote to overturn ACA in its entirety. For her part, Ginsburg couldn’t be certain that Roberts’ vote to uphold would stand, so she wrote in the possibility that he might switch his position.

If true, how might have this sequential process of coalition building influence the wording of the justices’ opinions?  Note that Ginsburg’s dissent (all references to the justices’ opinions are from the final decision here) repeatedly addresses the Chief Justice’s arguments regarding the commerce clause, in often scathing tones.   The portions of her dissent discussing the “vegetable state” that I alluded to yesterday are particularly biting.  In contrast, as far as I can tell, Kennedy’s dissent barely mentions the Chief Justice or his arguments at all. Instead, he typically directs his response against “The government and those who support its position” and spends most of his time addressing the Solicitor General’s oral arguments, rather than Roberts’ majority opinion.  Indeed, after eviscerating the government’s claim that the mandate is covered by the interstate commerce clause, Kennedy dismisses the tax rationale that is the heart of Roberts’ defense by saying, in effect, that when passing ACA Congress called it a penalty, not a tax. Moreover, its provisions are those associated with a penalty, not a tax. As Kennedy writes, “We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classi­fied as a tax an exaction described in the legislation itself as a penalty….we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exac­tion a ‘penalty.’ Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in§5000A(b) a ‘penalty’…What counts is what the statute says, and that is entirely clear.” And later, he warns, “Impos­ing a tax through judicial legislation inverts the constitu­tional scheme, and places the power to tax in the branch of government least accountable to the citizenry.” That is, to borrow my analogy from yesterday, if it does not walk or quack – it is not a tax.

As I noted yesterday, some bloggers believe the difference in tone suggests that Roberts initially sided with Kennedy and the three conservatives, but then was persuaded late in the game to switch to uphold ACA.  Crawford suggests in her CBS times piece that Kennedy and the three conservatives decided, at some point, to stop engaging with Roberts’ argument altogether.  But as Orin Kerr warns, consistent with Travis’ comment, Roberts might have supported upholding ACA almost as soon as the oral arguments ended.  The different tones adopted by the two groups of dissenters might simply reflect the compressed time schedule under which the justices were forced to come to a decision on a very important and very complex case.  Assume that Roberts decided shortly after oral arguments to uphold the ACA.  He then worked carefully to craft an opinion designed to reach out, in part, to Kennedy in the hope of getting at least a 6-3 vote, rather than the less politically appealing 5-4 split decision. The dissenters, pressed for time to make the alternative case, begin drafting their response even before seeing Roberts’ majority opinion, which is why they direct so much of their opinion against the Solicitor General’s oral argument.  When Ginsburg finally sees Roberts’ draft, meanwhile, she can’t be sure that he will hold his ground, so she focuses all her firepower on critiquing his interstate commerce clause argument, in effect trying to win a fifth vote (perhaps from Kennedy.)

I don’t know when Roberts arrived at his decision, or whether he is, in fact, merely the latest Justice Roberts to “switch in time to save nine.”   But I am confident that he crafted his decision – as did each group of dissenters – not just on a reading of the case at hand within an understanding of the constitutional issues, but also with an eye toward building a winning coalition with very little time to spare. In this sense the Court, as an institution, is less like a legal temple housing priests in robes, and much more like the backroom in City Hall.