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U.S. Supreme Court

Secret Sources? Insiders Tell Network Roberts Switched Sides on Health Law; Conservatives Show Ire

Posted Jul 2, 2012 6:32 AM CDT
By Debra Cassens Weiss

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After the U.S. Supreme Court upheld the Obama administration’s health care law last Thursday, speculation abounded that Chief Justice John G. Roberts Jr. had switched sides in the case.

CBS News also has a story saying Roberts changed his mind, but this time the report is based on more than conjecture. “Two sources with specific knowledge of the deliberations” are telling the network that Roberts initially voted to strike down the law’s insurance mandate, then changed his position to find congressional authority under its taxing power.

The switch spurred Justice Anthony M. Kennedy to mount a “month-long, desperate campaign to bring him back to his original position,” the story says. Roberts, on the other hand, tried to persuade Kennedy to join his opinion so the court would appear more united. Roberts’ opinion, circulated in early June, used some of Kennedy’s words during oral arguments and appeared tailored to gain his vote.

Conservatives weren’t on board. They sent Roberts a message by refusing to join parts of his opinion with which they agreed, including a section finding Congress had no authority to enact the law under the commerce clause, according to the story.

“Instead, the four [conservatives] joined forces and crafted a highly unusual, unsigned joint dissent,” CBS reports. “They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.” The bulk of the dissent was written by Kennedy and Justice Antonin Scalia, the story says.

Though court deliberations “are almost impossible to penetrate,” word of the chief justice’s shift has become widely known among law clerks aides and secretaries, the story says.

Hat tip to How Appealing.

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