U.S. Supreme Court

Scalia Was 'Enraged' at Roberts' Switched Vote on the Health Law, New Book Says


Justice Antonin Scalia was “enraged” when Chief Justice John G. Roberts Jr. switched his vote and created the majority needed to uphold the Obama administration’s health care law, according to a new book by journalist Jeffrey Toobin.

Politico’s Playbook published some excerpts in advance of the book’s release on Tuesday. When it became apparent that Roberts’ expected vote to strike down the law was going “wobbly,” Toobin writes, “conservatives on the court—especially law clerks—were so outraged that Roberts might betray them that they started to talk. …

“The four conservatives had overplayed their hand with the chief justice. By demanding that Roberts kill off the entire health care law, they prompted him to look for some kind of middle ground,” Toobin writes. “Scalia was enraged at the chief.”

But Toobin concludes Roberts probably didn’t poison relations with his conservative allies on the court. And Toobin sees a possible long-term gain for conservatives. By breaking with conservatives in the health law case, “Roberts bought enormous political space for himself for future rulings,” Toobin says.

The book is The Oath: The Obama White House and the Supreme Court. A Washington Post review by George Washington University law professor Jeffrey Rosen says Toobin’s account of the health law case builds on earlier reporting by CBS News and “has no notable scoops.”

“The many pleasures of The Oath come not from scoops about how cases were decided but from human details about the justices and their interactions with the White House,” Rosen writes.

Scalia said in a televised interview in July that he hasn’t had a falling out with Roberts.

The Minneapolis Star Tribune points out that Toobin had wrongly predicted the health law would be overturned. That didn’t stop him from making additional predictions in an interview with the newspaper.

His view: The Supreme Court will issue some “very conservative decisions about civil rights and affirmative action in higher education.” In addition, “the core of the Voting Rights Act will likely be overturned.” He’s not sure whether the court will strike down the Defense of Marriage Act. “I think equal treatment for gay people is an idea that at least some conservatives on that court may well accept,” Toobin told the Star Tribune. “But any sort of racial preferences are doomed.”

Hat tip to How Appealing and TPM.

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