Well, that did not take long at all. Note that it is not Roberts's and not the liberal justices's clerks who are the sources.
Jan Crawford:
Roberts switched views to uphold health care law: Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations. Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold. "He was relentless," one source said of Kennedy's efforts. "He was very engaged in this." But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said. Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate….
[W]ord of Roberts' unusual shift has spread widely within the Court, and is known among law clerks, chambers' aides and secretaries…. Roberts and the four conservatives were poised to strike down at least the individual mandate….
Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the Court's historic decision. He kept it for himself….
[I]t… became clear… that Roberts was, as one put it, "wobbly," the sources said…. At least one conservative justice tried to get him to explain [his change], but was unsatisfied with the response, according to a source with knowledge of the conversation…. [I]t was clear to the conservatives that Roberts wanted the Court out of the red-hot dispute….
Roberts had begun to focus on a different argument to uphold the law and the mandate's penalty by defining it as a tax. That strained argument had received almost no attention in the lower courts, which had uniformly rejected it…. It would have been far easier, legally, for Roberts to have followed the rationale of two conservatives who voted to uphold the law in the lower courts: Appeals Court Judges Laurence Silberman and Jeffrey Sutton…. In the health care case, since no one was urging the Court to overturn that precedent (Wickard v Filburn), the Court could have issued a narrow opinion. It could have ruled that since it wasn't being asked to depart from settled law, the health care act would stand, based on prior precedents….
Roberts then engaged in his own lobbying effort - trying to persuade at least Justice Kennedy to join his decision…. Even in Roberts' opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy's vote. Roberts even used some of the same language that Kennedy used during oral arguments…. he tried to persuade the conservatives to join at least the parts of his opinion with which they agreed…. But… the conservatives would have none of it….
The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.
The language in the dissent was sweeping, arguing the Court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia - and then, there is Justice Kennedy. "The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril," the dissent said. "Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."
