Roberts' Switch on Health Care Signals a Leaky Supreme Court


"The temptation might be greater than in past years, in past cases," Amar said. "The clerks generally have a pretty good idea of everything that's going on on all the cases, because if you're going to change your vote, all of that's done by memo. That circulates to every chamber."

But Amar said the bigger question to ask is, Why is it wrong for a Supreme Court justice to change his or her mind? After all, Stevens did it — after his vote. Unlike a jury, justices are well aware of the circumstances surrounding the cases they hear and the external pressure, from the other branches of Congress, the public, the media, law professors, and experts who might know more than they do.

"You really need to know whether a persuasive defense can be written, not just uttered," Amar said.

"It could be that he just came to see the issues and the arguments in a different and fuller light," he added. "There's nothing illicit about being open to revisiting your views."

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