In it, but not of it. TPM DC

New Book Details John Roberts' Health Care Switch


The writer says the conservatives on the court, particularly law clerks, grew "so outraged that Roberts might betray them" that they began talking and, soon after the decision, leaked Roberts' change of heart -- an exceedingly rare occurrence for the court.

The Bush-appointed jurist was caught in a bind, forced to choose between rebuking the conservative movement and risking his -- and the court's -- legacy. A key factor that led to his decision to side with the court's liberal wing, Toobin concluded, was the insistence of the four conservative justices on nullifying the health care law in its entirety.

"The four conservatives had overplayed their hand with the chief justice," he writes. "By demanding that Roberts kill off the entire health care law, they prompted him to look for some kind of middle ground. ... [Justice Antonin ] Scalia was enraged at the chief. ... With all the changes, the cross-references among the various opinions became confused. ... By a vote of 5-4, the Court would uphold the heart of the Affordable Care Act."

Scalia denied that he and Roberts have had a falling out over the decision.

Toobin says it's "very unlikely" Roberts' move will "poison his relations with his conservative allies on the Court." The long-term gain for the right, he writes, is that the jurist nevertheless advanced their cause on the Commerce Clause and "bought enormous political space for himself for future rulings" -- including on affirmative action and voting rights next term.