If yesterday's CBS News account of Chief Justice John Roberts switching his vote and ultimately siding with the Supreme Court's liberal voting block in order to uphold the law is correct, then the next question is why, exactly, Roberts switched his vote.
The CBS report offers some speculation that Roberts may have felt intense pressure due to media criticism warning of a crisis of legitimacy should the Supreme Court strike down all or part of the law.
So was it all political? Maybe not. Reporter Jan Crawford also cautions that no one really knows why Roberts switched. "At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation," the report notes.
Jonathan Adler, a law professor at Case Western Reserve University who has been critical of the health care law, suggests that other explanations may work better. "I don't agree with what Roberts did," he says. "But I do think there are good reasons to adopt slightly more charitable accounts of his behavior."
Roberts has made the case for judicial modesty and deference to the legislature before, likening the court to an "umpire" and arguing for "humility" from the bench. The role of a Supreme Court justice, he told Congress, "is a limited role. Nobody ever went to a ball game to see the umpire."
Roberts' ruling, then, may be an attempt to restrict the court to staying within what he believes to be its limits. Crawford's "piece never directly claims political motivation, and there are other explanations," says Adler, noting that "Roberts has stretched statutes to preserve their constitutionality before. He genuinely believes that's the proper thing to do, and may feel some regret that he didn't stick with that position in [the Citizens United case]."
I find Crawford's account of Roberts' switch both plausible and likely. And, like Orin Kerr, I suspect that at least one of the two anonymous sources she cites for the report was a sitting Supreme Court justice. And I'm willing to entertain multiple possibilities as to why he switched his vote. We may never know the true reason. (For that matter, we may never get official, on the record confirmation that he actually made the switch.)
But the nature of Roberts' decision, which unexpectedly justified the mandate as a viable exercise of the taxing power but not the commerce power—a long-shot argument that even most judges who ruled in favor of ObamaCare didn't buy—suggests that the decision was designed with the Supreme Court's role in mind. It is possible, of course, that Chief Justice Roberts simply thought about it and found the tax argument compelling enough to give ObamaCare's mandate a pass. But given the report that he initially voted against the mandate and later went "wobbly," it also seems plausible that he switched his vote to uphold the mandate via the tax power not exclusively because he thought it the best and strongest legal argument, but with shaping the role and reputation of the court in mind.