Somin in Politico: On Roberts' Reported Switch

Commenting on reports that Chief Justice John Roberts sided initially with conservatives to overturn the Affordable Care Act but switched his vote to join the Court's liberals in upholding it, Professor Ilya Somin defended the justice's right to rethink his position, with a qualification.

"People are certainly entitled to change their minds, especially in a complex and difficult cases," he said, but he added that it would be unfortunate if Roberts changed his vote out of fear of criticism. 

"Then that is placing reputation above duty," Somin concluded.

Behind-the-scenes details of the ruling and dissents were released in a CBS News story over the weekend, leaving many conservatives angry at Roberts for what they see as a political decision on his part. 

Roberts' health care switch: Gasoline on the fire, Politico, July 2, 2012. By Jennifer Haberkorn and Darren Samuelsohn.

"'I think this was an important decision for him — that he be seen as someone who is willing to give substantial deference to the political process,' said Alan B. Morrison, a George Washington University law professor who argued 20 cases before the Supreme Court. 

"Changing a vote 'is hardly a condemnation of the process,' he said. 'Many times, judges — including Supreme Court justices — start writing something and their intuition doesn’t take them as far as they need to go.'

"The justices traditionally vote on each case on the Friday following oral arguments. The most senior justice on each side gets to appoint the opinion writer, who gets to work and circulates the majority or dissenting opinions to the other justices.

"Justices can change their vote after the meeting, but it’s somewhat rare — or at least, the public rarely knows about it. Most famously, Justice Anthony Kennedy changed his vote in the 1992 case of Casey v. Planned Parenthood, which upheld much of Roe v. Wade.

"Several court experts say they are nonplussed by the chatter over the idea that Roberts changed his mind.

“'The opinions do read like the chief originally planned to vote against the mandate and then changed his mind,' said Richard Primus, a liberal law professor at the University of Michigan.

"But Primus said he still has his doubts about the reasons that Roberts would have switched, and he said the CBS story doesn’t give credible explanation."

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