Changing Minds at High Court in Health Care Case

      Chief Justice John Roberts was not the only member of the Supreme Court to have a change of mind sometime after the arguments over President Obama’s health care reform in late March and before the June 28 decision in the case. Justices Stephen G. Breyer and Elena Kagan also had a change of mind, or heart, on the secondary issue in the case: the constitutionality of the expansion of the federal-state Medicaid program.
      This information comes not from confidential sources but from a re-reading of the transcripts of the March 28 arguments. Kagan and Breyer, even more than their liberal colleagues Ruth Bader Ginsburg and Sonia Sotomayor, challenged attorney Paul Clement relentlessly as he argued that the states were being forced to agree to the expansion even though the federal government was paying all or virtually the cost through 2020 and beyond.
      “Why is a big gift from the federal government a matter of coercion?” Kagan asked. “It's just a boatload of federal money for you to take and spend on poor people's health care,” Kagan added. “It doesn't sound coercive to me, I have to tell you.”
      Breyer intervened later to take on Clement’s point that the law put the states at risk of losing all their Medicaid funds, not just the new federal money, if they refused to go along with the expansion. “Where does it say that?” Breyer said.
      Clement fumbled, but Breyer had his answer already. Quoting the pertinent section, Breyer said a provision in the original Medicaid law passed in 1965 gave the secretary of Health and Human Services discretion to withhold funds from states.
      Citing his own research, Breyer said the law had never been applied in the way Clement was suggesting. “I want to know where this idea came from that should state X say, ‘I don't want the new money,’ that the secretary would or could cut off the old money?” Breyer snapped.
      Solicitor General Donald Verrilli got tough questions in his turn from the other side of the bench, so by the end of arguments the likely outcome was unclear. But Breyer and Kagan seemed all but certain votes against the states’ position.
      Sometime after the arguments, however, Breyer and Kagan came to a different conclusion. They joined Roberts and the court’s conservatives in holding that the Medicaid expansion was unconstitutionally coercive toward the states. Roberts joined the four liberals, however, in salvaging the expansion by limiting the penalty for non-participating states to loss of new, not existing, funds.
      Like Breyer and Kagan, Roberts cast votes in the case, National Federation of Independent Business v. Sebelius, at odds with the tenor of his questions during the six-and-a-half hours of arguments. Unlike Breyer and Kagan, however, Roberts has come under public scrutiny for his change of mind after an extraordinary disclosure by CBS News legal affairs correspondent Jan Crawford.
      Crawford reported on July 1 that Roberts decided to uphold the law six weeks after he had voted and started drafting a majority opinion to strike down the entire Affordable Care Act. Quoting “two sources with specific knowledge of the deliberations,” Crawford said Roberts withstood “a month-long, desperate campaign” to bring him back to his original position. Justice Anthony M. Kennedy in particular was “relentless” in the unsuccessful lobbying effort, she said.
      Crawford, a good reporter with very good conservative sources to match her conservative leanings, did not identify her sources. The logical suspects are justices themselves or law clerks, perhaps with a justice’s approval. Clarence Thomas is a prime suspect, given the mutual admiration between Crawford and Thomas; Kennedy is another, given the flattering description of his role in the events.
      A week later, Crawford’s report is unconfirmed — but also uncontradicted. The structure of the opinions provides some substantiation. The joint dissent listed as authored by the four conservatives — Antonin Scalia, Kennedy, Thomas, and Samuel A. Alito Jr. — mistakenly refers to Ginsburg's partial concurrence as “the dissent,” suggesting it was originally drafted as such. Some evidence also comes from a tweet by the conservative National Review columnist Ramesh Ponnuru in May that the justices had voted to strike down the law but that Roberts had gone “wobbly.”
      Justices can and do change their minds after initial votes in conference. In two known instances, Kennedy himself changed positions in major cases in 1992. He voted initially to permit school-sponsored prayers at high school graduation ceremonies only to write the majority opinion barring the practice. And he voted initially to overrule the abortion rights decision Roe v. Wade before joining Justices Sandra Day O’Connor and David H. Souter in the joint opinion that largely reaffirmed the decision.
      Conservatives feel betrayed by Roberts’ vote. Some are convinced that he yielded to warnings in editorials and commentary in the media and legal blogs that a ruling against the law risked political attacks on the Court. Conservative columnists and commentators responded by publicly pressuring Roberts not to yield to public pressure.
      Court watchers are bemoaning the leak — “a stain” on the Court, says former solicitor general Theodore Olson — but the Court and the justices will survive. For now, it is enough to recall Justice Felix Frankfurter’s oft-quoted comment when he changed his view on an arcane tax issue only six years after an earlier decision. “Wisdom too often never comes,” Frankfurter wrote in Henslee v. Union Planters Bank (1949), “and so one ought not to reject it merely because it comes late."