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Did Roberts Flip On The Health Care Decision?

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Did Roberts Flip On The Health Care Decision?

Judging The Health Care Law

Did Roberts Flip On The Health Care Decision?

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MELISSA BLOCK, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

ROBERT SIEGEL, HOST:

And I'm Robert Siegel.

In days since the Supreme Court's historic health care ruling, there's been a good deal of speculation about whether Chief Justice John Roberts changed his mind in the course of deliberations. Even before the decision was announced, conservative writers railed that liberals, and the so-called mainstream media, were trying to intimidate the chief justice.

Well, we've invited the always intimidating NPR legal affairs correspondent Nina Totenberg to help sort it out.

(LAUGHTER)

SIEGEL: Hi, Nina.

NINA TOTENBERG, BYLINE: Hi.

SIEGEL: Let's start with the notion that the chief justice changed his mind. Did he? And is there anything wrong with that if he did?

TOTENBERG: Well, this whole question in some ways misperceives the way the Supreme Court operates. Yes, there is a vote in conference after the case is argued and, after the vote, the chief justice, if he's in the majority, assigns the opinion. And he did that in this case and assigned it to himself, which you would expect in a major opinion like this.

But this case, more than most, has a lot of moving parts and justices sometimes do change their minds on many aspects of a case, as they think about the issues, consult with colleagues and circulate drafts.

SIEGEL: One argument I've seen on behalf of the idea that Chief Justice Roberts flipped is that the minority opinion, the conservative justices refer to Justice Ginsburg's dissent. Whereas, as things turned out, she was in the majority, along with the chief justice, upholding the law.

TOTENBERG: But if you look carefully, the first reference to Justice Ginsburg's opinion refers to her dissent on the Commerce Clause. And she was in minority on the Commerce Clause. She lost that part. And so it sort of evaporates as an argument.

SIEGEL: Now, there is one report out there by CBS, saying that the chief justice did change his mind. After spending some time reporting this story yourself, what do you think?

TOTENBERG: Well, I think there's a kernel of truth to the story. But again, these things aren't like a legislative vote. I think that the chief justice was always clear that the mandate could not be justified as a legitimate exercise of the Commerce Clause. But I think he was probably somewhat ambiguous as to what his position was on the taxing power, which he ended up saying did allow the mandate.

And I think that by the time he circulated his first draft, probably some time in May, the court's four conservatives realized that they had lost and were probably pretty mad.

You know, Robert, justices are human. And on a big case, where there is a press of time, like this one, or Bush versus Gore, there are hard feelings. But what's unusual here is the apparent attempt to undermine the chief with a leak more typical of political combat.

SIEGEL: Yes, as you say, the leak does seem aimed at somehow discrediting the chief justice. The CBS story cited two sources with, and I quote, "specific knowledge of the deliberations." Who could that be?

TOTENBERG: It could be a law clerk or, I suppose, even a justice, or maybe even a spouse. But it really is amazing that this sort of fight has gone public and in a very targeted way, with a leak to a reporter who is well-liked by conservatives, and a story that's clearly meant to detract from the good reviews the chief justice was getting in many quarters, and not just from the so-called mainstream media.

After the decision, he got a lot of credit for finding a way to keep the court out of the political fray, leaving policy decisions to Congress, while at the same time setting down some new and, for liberals, troubling markers limiting congressional power in the future.

SIEGEL: Nina let me ask you about the notion that the chief justice was intimidated by commentary in the press, intimidated into changing his mind.

TOTENBERG: Well, for weeks, even months, conservatives have been writing that liberal commentators and politicians were trying to essentially scare the chief into upholding the law. And I suppose that liberals would reply that they're entitled to express their views just as conservatives are and that their views aren't aimed at intimidating anyone.

But for some conservatives, in the aftermath of the decision, there is this sense of incredible betrayal, particularly among movement conservatives; from Rush Limbaugh and Glenn Beck to people like former Bush administration official John Yoo. There's a kind of fury at Roberts for, in essence, being more loyal to the Supreme Court as an institution than to an ideology.

SIEGEL: Thank you, Nina

TOTENBERG: Thank you.

SIEGEL: That's NPR legal affairs correspondent Nina Totenberg.

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