Media reports may have influenced Chief Justice Roberts’ Supreme Court health-care flip

CBS News | Felix Salmon
CBS correspondent Jan Crawford reports Chief Justice John Roberts changed his mind on the Affordable Care Act, then tried to get other justices to go along with him. Part of Roberts’ calculation, Crawford writes, was due to “external pressure”:

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

There were countless news articles in May warning of damage to the court – and to Roberts’ reputation – if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.

That would seem to comport with Charles Krauthammer’s column last week that speculated (or maybe didn’t speculate?) “Roberts’s concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.”

For court-watchers, the bigger news in the piece is Crawford piercing the veil of silence that usually drapes the court. Felix Salmon marvels:

As Crawford says, “the justices are notoriously close-lipped, and their law clerks must agree to keep matters completely confidential.” And yet, we’re now seeing these coordinated and perfectly-timed leaks from within the Court, detailing information known only to the justices themselves. The conservative justices are leaking, and although Crawford talks about “law clerks, chambers’ aides and secretaries” who have been gossiping internally about Roberts’s change of mind, it’s pretty clear that her sources were impeccable and that if they weren’t the conservative justices themselves, they were sources who had the explicit consent of those justices to start talking to the press.

Salmon says the report shows there’s “life yet in broadcast journalism.” In a rush to break news first about Thursday’s decision CNN and Fox broadcast, incorrectly, that the Affordable Care Act had been struck down.

Related: SCOTUSblog’s Lyle Denniston: “[B]eing first is not the most important thing for us. It’s being first AND accurate at the same time.” (Paid Content) | Rex Smith: “With so many news sources available nowadays, people aren’t likely to remember who got a story ahead of its competitors by a few seconds or minute, but they will remember who got it wrong.” (Albany Times-Union) | CNN, Fox News errors a series of real-time collisions (Poynter)

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  • Anonymous

    So, the Justices listen to media coverage.
    So much for the law.

    And they facilitate leaks.
    What could the purpose for that be?

    Or, why did the most conservative Justice apparently turn in a “liberal” decision?

    “First he [Roberts] was the swing vote that imposed the idea that Health Care Is A Product and set the stage for a possible general principle: The Interstate Commerce Clause governs the buying and selling of products and the government cannot force anyone to people to buy a product (real or metaphorical).

    Second, Roberts was the swing vote on the ruling that saved the Affordable Health Care Act by creating a precedent for another metaphorical legal principle: A fee or payment imposed by the government is a tax.

    In short, in his votes on one single issue, Roberts single-handedly extended the power of the Court to turn metaphor into law in two conservative directions.”