Roberts is the swing vote in this case and this is the biggest case of his time on the Court, so he quite naturally assigns the opinion to himself....Read all the speculation. It's interesting, and as Kerr says, eventually we'll probably get the inside story. What I want to talk about is whether there's something wrong with switching. Let's assume the Chief Justice originally voted along with Justices Scalia, Kennedy, Thomas, and Alito, that he was writing a majority opinion, agreeing with them on all the issues that ended up in their joint opinion, and that he decided to go the other way on the taxing power issue.
To write the opinion, Roberts needs to cover a lot of ground — anti-injunction act, tax power, medicaid expansion, etc. Roberts also writes on the Commerce Clause issue, even though it’s not needed to reach the result. Why include that section? Perhaps Roberts thinks that his middle-ground opinion that includes a section agreeing with the mandate challengers on the Commerce Clause might pick up Kennedy’s vote. Or maybe Roberts just wants to weigh in on the most high-profile legal issue of the year, which he happens to care a lot about....
After Chief Roberts circulates his majority opinion, the conservative dissenters decide to write a joint opinion in response. Why a joint opinion? It took Roberts a while to circulate his proposed majority opinion, so the time pressure is particularly intense on the dissenters....
At the same time the conservative dissenters are writing their response to Roberts from the right, Justice Ginsburg does the same from the left...
You might want to know why he switched. He might have switched because, in the process of writing — putting together the constitutional text and theory and all the details of precedent and and the complicated mechanisms of the 900-page statute — he saw that his original intuition about how all the elaborate moving parts would fit together was mistaken. The process of writing the opinion tests many assumptions, and a good, decent, humble judge looks at what he's doing and admits: This won't write.
So, in this case, we might picture Roberts initially determining that he would reject the taxing power argument because Congress portrayed the individual mandate as a requirement, enforced by what it called a "penalty," but along the way, he saw that the label should not be determinative. His opinion emphasizes the case, Drexel Furniture, in which the Court found something Congress had called a tax to be, in reality, a penalty and thus not within the taxing power. Turning that around, he saw that Congress calling something a penalty didn't make it not a tax.
Now, I've criticized Roberts for not talking about the democratic theory of the taxing power. It's one thing to limit Congress's power where it's put a false label on a severe and burdensome law, and it's quite another to find power where Congress avoided using the word that would have made it obvious that there was power. In terms of democratic theory, the judicial role is different. The Court in Drexel thwarted Congress's use of a phony label to make a big power grab. Roberts was allowing a power grab to be made by a Congress that was deceiving the people about what it was really doing. If Congress had admitted forthrightly that the so-called penalty was in fact a tax, people might have reacted differently and made it harder for Congress to assemble the votes needed to pass the law. The mislabeling may have weakened the political pressure against Congress and facilitated its exercise of power.
If the Court is going to defer to the legislative process, it ought to care about dysfunctions in the process, so mislabeling the individual mandate ought to activate the Court, not inspire restraint. I wish Roberts had talked about that. But perhaps he did think about it. Perhaps he thought: Congress is always dealing in euphemisms, conning the public one way or the other. What's truly dysfunctional is a Court that coddles the people, purporting to save them from a Congress that is always going to try to trick them into thinking the legislation is quite nice for everybody. People need to stay alert and pay attention. Be skeptical of labels. Did somebody say nobody considers this a tax increase? And you believed it? You are not sophisticated enough to live in a democracy! Sharpen up! I'm not going to encourage your laxity.
I don't know what mental processes Roberts might have gone through in this vote-switch scenario, but I think you should agree with me that if it were something like what I've written, that there is nothing at all wrong with switching his vote. Even if you don't like his taxing power decision, you shouldn't see anything worse about reaching it with a switch than without a switch, if it was a case of writing a duly judicial opinion and discovering that the right answer was different from what he initially had expected. In fact, it is praiseworthy.
But what if he looked outward, after the oral argument, and heard what the President of the United States and numerous commentators were saying, inveighing against an anticipated decision striking down the law? What if he was vulnerable to the strong assertions that the Court will have sacrificed its legitimacy and become an arm of the Republican Party? What if he thought about the political effect of the drastic opinion he was writing and got cold feet? Judging is an insulated world. The judges are old men and women who stay inside, reading and writing, talking to each other, interacting with people who are extremely deferential and respectful toward them. Why are they reliable interpreters of the law that will affect all the ordinary people out in the real world? What do they know?
A Supreme Court Justice could — for example — spend his off months in the summer driving around the country, parking his RV at Wal-Mart, camping around people who don't realize who he is. But he might also simply expand his reading. You're working on that opinion on a computer, connected to the internet, where everyone is talking about what you are doing. Do you forbid yourself to peek, because it's not properly judicial? Or do you break through that inhibition and take that dose of reality? Is that wrong? If you read those things, you can pre-experience the effect the opinion will have on the people. If you vividly inhabit that experience and come to the realization that the direction you've been going is wrong, and then you switch sides, is that wrong?
Perhaps it's quite right. I criticized Roberts for not talking about the democratic theory of what he did with the taxing power issue. But it might be that he looked very deeply into it and that part of that deep look was a contemplation of how the Court's opinion would be understood, perceived, and used within the political process. He might have thought that the people who expected the Court to save them from the Congress that had tricked them — saying this is not a tax — had gone soft, unfit for democracy. To give them what they wanted would further slacken them. But if those who want the Court to let Congress get away with this trickery win, we'd better watch out. The message is pro-democracy: vigilance.