Natty Shafer Law

Utah lawyer for criminal and immigration cases

Curious Development in the Obamacare Case

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Excuse me for a moment while I have a nerdgasm, but this stuff does not happen often. Yesterday, Jan Crawford of CBS News got a major scoop detailing some of the inner-workings of the Supreme Court during the Obamacare case. Apparently, Chief Justice Roberts originally sided with the four other conservative justices to declare the individual mandate unconstitutional, but he changed his mind. The conservative justices then spent a month trying to get him to change his mind back.

The Supreme Court usually doesn’t leak this kind of story. The Court eschews most publicity—cameras aren’t even allowed in the courtroom—and details about the Courts’ deliberations usually come out years or decades later, if they come out at all. For this story to come out just three days after the decision means that a justice or a clerk wanted this story released immediately. It could have been anyone, but it most likely that someone angry leaked the story. It is unlikely that a clerk would risk their career without having permission to talk. One or more of the conservative justices, directly or indirectly, likely leaked this story.

If true, it explains several oddities about the case. For one, it would explain why none of the conservative justices were willing to join any portion of Roberts’ opinion, even the parts they agreed with, and it explains why the dissenters refused to reference his opinion in their unsigned joint opinion. But most of all is explains the sudden appearance around Memorial Day of op-ed pieces accusing the “liberal media” of trying to bully Roberts into changing his vote. (Linda Greenhouse, legal blogger for The New York Times, noticed this too.) It caught my attention at the time, because the op-ed pieces specifically singled out Roberts as the target of an alleged liberal campaign, instead of Justice Kennedy, who is generally more likely to vote with the liberals on the Court.

Author: Natty Shafer

Attorney practicing immigration and criminal law

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