Roberts' Switch on Health Care Signals a Leaky Supreme Court

Usually we have to wait until a justice leaves before knowing why they voted.

ByABC News
July 2, 2012, 3:57 PM

July 2, 2012 -- In the third and least covered branch of government, secrecy is a hallmark. Supreme Court justices rarely explain how they arrive at their votes, and when they do, it's usually long after they've left the bench, or even in papers released after they've died.

In the case of the Roberts court, that precedent might be broken.

Not four days after the court handed down its decision upholding President Obama's health care law — a case that falls into the "monumental" category even by Supreme Court standards — the decision-making process of John Roberts, the chief justice who cast the deciding vote, has spilled into the public arena.

Roberts, according to a CBS News report confirming scholars' suspicions, originally sided with the four justices who thought the individual mandate was unconstitutional, then changed his mind and wrote the majority opinion for the liberals who wanted the law to stand. And even as he signaled he was siding with the left side of the bench, the justice who was thought to be the swing vote, Anthony Kennedy, lobbied Roberts intensely but to no avail.

"This is extraordinary," said Vikram Amar, an associate dean at the University of California-Davis law school who was previously a clerk at the Supreme Court.

In 2004, a half-million papers from Justice Harry Blackmun were made public, detailing the judge's personal journey in the high court and particularly his role in writing the opinion in the landmark Roe v. Wade case that made abortion legal. Blackmun, who died in 1999, gave the documents to the Library of Congress after he retired in 1994, and asked that they not be released until five years after his death.

Their contents were remarkable. Perhaps the most revelatory letter also involves Kennedy, who wrote Blackmun previewing "welcome news" in 1992 as the court considered abortion again in Planned Parenthood v. Casey. The news was that three justices appointed by Republicans had agreed to keep abortions legal; after Kennedy told Blackmun in person, the justice who had built his judicial legacy on the Roe v. Wade decision wrote on a memo pad, "Roe sound."

In 2011, another justice who had departed the Supreme Court offered a stunning regret about a vote on the death penalty. John Paul Stevens, who had retired the year before, told ABC News's George Stephanopoulos that he wished he had voted differently in the 1976 case Jurek v. Texas that reinstated the death penalty in Texas.

"I think that I came out wrong on that," Stevens said of his vote, which he wrote about in a book published after he retired.

Candor and insight into a Supreme Court justice's thought process are priceless, but unfortunately for the public are too rare while the justices are serving. Roberts's change of heart is perhaps now known because of the importance of the health care ruling, and the fancy among Supreme Court clerks and others inside the building to leak the development.

Amar said he suspected a sieve in the court six weeks ago, when he heard third-hand that Kennedy had voted in a routine conference with the other justices to strike down the mandate. And some observers noticed a month ago that conservative writers like George Will had begun writing about Roberts and his potential role in casting a decisive vote.