The prevailing wisdom in conservative circles, following this weekend's news about John Roberts' health care flip-flop, is that the liberal media influenced the Chief Justice's decision. Yet, in retrospect it looks like both sides were playing that game all along.
Jan Crawford's CBS story doesn't offer any direct assertions that Robert was swayed by outside opinion, but the theory that he was motivated by the legacy of himself and the court has been present almost from the moment the decision was handed down. Here's how she put it:
As Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it....
Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.
Conservatives have taken Crawford's story as confirmation of what they already believed: That Roberts was bullied by the "left-wing media." Editorial pages and politicians "blackmailed" him (quite literally, if you believe one conspiracy theory) by preemptively suggesting that overturning the mandate would ruin the court's reputation, painting it as politicized and partisan body. They warned that striking down an act of Congress would make Roberts himself look like a party hack — or worse, a liar — for going back on his confirmation hearing promises of judicial restraint. Avik Roy at National Review, summed it up this way:
Perhaps, the next time a Republican president nominates a Supreme Court justice, he should make the candidate swear to never pick up a newspaper.
What's left unsaid, however, is that the conservatives are now trying to use that same media to shame Roberts after the fact. Not only that, they may have been doing it even before Roberts issued his opinion. Crawford's story is based on two anonymous sources who are obviously highly placed assets at the leak-averse Court; perhaps even his Associate Justices themselves. Very few people could have direct knowledge of conversations between the justices that are now being passed around. At the very least, the sources would probably only have talked to the media with the blessings of their bosses.
But now that it's been established that Court insiders are willing to bring their battles out into the open, several incidents from before the decision — during the weeks when Crawford claims of "arm-twisting" were going on among the Justices — suddenly take on a new, more ominous tone.
In May, Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, specifically called out the Chief Justice during a floor speech, personally beseeching him to uphold up the law. "I trust that he will be a chief justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch," Leahy said. Had his sources told him of Roberts' initial vote to strike down the law? President Obama made similarly pointed statements that didn't name names, but preemptively let the Court know (while they were still debating) that killing his law would be bad news for them. Did he know which way the wind was blowing?
But was it only the liberals doing the leaking? Linda Greenhouse at The New York Times points to a George Will column written in response to Leahy's speech, accusing liberals of putting "the squeeze to Justice Roberts" ... while simultaneously arguing that Roberts couldn't be swayed. ("Such clumsy attempts to bend the chief justice are apt to reveal his spine of steel.") Greenhouse wonders now, was Will tipped off that Roberts was wavering? Were insiders using him to send the Chief Justice a message? Were they trying to buck up his confidence and bring him back into the fold?
Keep in mind, this is all pundit speculation. Nobody knows who is talking to who or when or if they were ever really talking at all. Two weeks ago, Justice Ruth Bader Ginsburg (while possibly dropping some hints of her own) said, “At the Supreme Court, those who know don’t talk. And those who talk don’t know." She may still be right about that. But the perception that what happens at the Court stays at the Court has been fundamentally shattered and unlikely to ever be repaired.
In the end, that may be more damaging to the Supreme Court's legacy than any decision Roberts might have worried about. The idea that Chief Justice Roberts (an unelected, lifetime appointee) cares more about public opinion that he does about the law is a pretty loaded charge. However, given the reactions on both sides it's pretty clear that any fears he might have had about the Court's integrity were well founded. Unfortunately, his attempt to save its image may have only brought out the worst in his colleagues.
This article is from the archive of our partner The Wire.