The Unprecedented Uniqueness of Chief Justice Roberts Opinion
Reading from the
Volokh Conspiracy:
I have been out of town and not keeping up with all the chatter about
the news that Chief Justice Roberts changed his vote after conference
from invalidating the ACA, at least in part, to a vote to uphold it. The
obvious question arises: was this switch motivated by legal
considerations, or by the sort of political considerations that had been
urged upon him, after the case was submitted, by supporters of the ACA?
Of course, deciding what motivated any particular decision must
necessarily be judged by circumstantial evidence. Unless he expressed
his motivations to others, only the Chief Justice has personal knowledge
of why exactly he changed his vote (assuming that the reporting of this
vote change is accurate). The same was true of why five of the nine
Supreme Court justices ruled the way they did on the remedy in Bush v. Gore
after seven justices found an Equal Protection violation in the way
Florida was counting its ballots. Yet, at least in academic circles,
this speculation has taken on the status of ontological truth: The five
“Republican” justices handed the election to “their” party’s candidate?
I have always believed that, that the circumstantial evidence for
this proposition was thin, and I have resisted the suggestion that Bush v. Gore
was a nakedly political decision, though of course I have to allow for
the possibility that it was. The only “evidence” for this conclusion,
apart from the party affiliation of the President who nominated them
(which is pertinent) was the reasoning of the decision, which was not in
an area of my specialty. I don’t wish to rehearse these arguments here,
but I do know this was the circumstantial evidence that has persuaded
many of my colleagues.
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