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.<<Read More>>