New Book Details John Roberts’ Health Care Switch

September 16, 2012 5:55 a.m.

Chief Justice John Roberts switched sides mid-way through deliberations to uphold ‘Obamacare’ after failing to find middle ground with conservatives, and in the process infuriated Justice Antonin Scalia, a new book concludes.

Excerpts from longtime court watcher Jeffrey Toobin’s “The Oath: The Obama White House and the Supreme Court” leaked to Politico’s Playbook jibe with earlier reports that the chief justice changed his mind as the ruling neared and became the deciding vote to uphold the Affordable Care Act.

Toobin writes: “[T]he tax argument stayed with the chief justice. In April and May, it started to become apparent to the other justices that Roberts was going ‘wobbly’ in his determination to overturn the law. Voters are never final until the decision are announced in open court. Votes at conference are by definition tentative. It is well within the bounds of acceptable behavior for justices to change their minds once opinions being circulating. Still, that rarely happens. But now, it appeared it was happening with Roberts — in the most important case of his tenure as chief justice.”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.

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