Here’s the first entry in our weekly post series, “The Pitch.” This post, written by our very own Seth Millstein, analyzes the Supreme Court’s recent decision on the Affordable Care Act in wider historical context. Find him on Twitter over here.
Stepping back and looking in wider context: Conservatives were very upset with Chief Justice John Roberts last month when he provided the tie-breaking vote to uphold the Affordable Care Act. That anger grew exponentially when reports surfaced that Roberts had originally voted to overturn the law, but then switched his vote to side with the court’s liberals. Why did Roberts flip-flop? How common is vote switching on the Supreme Court? And how often has a single justice’s indecisiveness significantly affected the law of the land? ShortFormBlog reports. (Read more after the jump.)
Preface: How justices think
- These are not nine all-wise people who retire to a secret room and come up with the answer that nobody else can figure out. They’re nine human beings who are trying to wrestle with the problem the way the rest of us do.
- Former SCOTUS clerk Bill McDaniel • Discussing the nature of Supreme Court justices changing their minds. The Court has a very heavy case-load in a given year, and the June period is especially heavy. WIth much wheeling and dealing taking place behind the scene, especially among moderates, it’s very likely that nobody’s mind is made up on any individual case immediately.
Some notable historical swaps
- 11 decision-changing swaps made between 1991 and 1994 alone
- Abortion rights In 1992, a last-minute vote switch prevented the overturning of Roe v. Wade. A case involving a highly-restrictive Pennsylvania abortion law made its way to the Supreme Court. Advocates of the legislation argued that, while the law did indeed violate Roe, Roe itselfwas unconstitutional, and should thus be overturned. During the first vote, the court ruled 5-4 in favor of overturning Roe …but then, at the last minute, Justice Kennedy changed his mind, voting with the liberal wing of the court instead.
- VCRs (seriously) Do VHS machines violate copyright law? That was the question before the court in 1983, when the entertainment industry argued that, because the devices enable people to record and pirate copyrighted material, they should be outlawed. The initial vote was 5-4 against the video cassette recorder, but Justice Sandra Day O’Conner switched her vote after the majority opinion was written, thus protecting the rights of future nine-year-olds to tape The Mighty Ducks when it came on TV. A single tear for Emilio Estevez.
- Homosexuality In 1986, the court debated whether or not anti-sodomy laws were constitutional. Justice Lewis Powell had originally agreed that “homosexual acts,” as they were ominously referred to back then, were permissible in the privacy of one’s home, but then changed his mind, keeping the ban on sodomy in place. This decision was ultimately less influential than Kennedy’s vote-switch, however: Three years later, the court overturned the ruling, and now gay sex is constitutionally-protected.
Reasons for vote swapping
- To put it simply: It’s not always what you think it might be. There are several reasons a justice might change their vote midway through the process (although of course, plebes like us will never know for sure):
- image Many people suspect that Roberts switched his vote to protect the court from being seen as an overly-partisan institution — an understandable fear, considering that the court had recently made high-profile decisions that proved very unpopular, such as Citizens United.
- roots In the sodomy case, Powell’s decision was reportedly influenced by the fact that the plaintiff in the suit, a gay bartender who had been “caught” having sex with another man in his own bedroom, hadn’t actually been prosecuted, but rather filed a civil suit against the state.
- effects The VHS case is an interesting one: While O’Connor agreed that VHS violated copyright law, the majority opinion also overturned a lower court’s ruling (on a different, but related question) that she agreed with. Apparently, it was more important to her to uphold that decision.
» Something to keep in mind: Finally, when discussing the ACA ruling, it’s important to keep some perspective. A lot has been made about how the amount of detail that leaked about the court’s internal deliberations was unprecedented — but that’s what they said in 1986 about the Powell case. (“Such information rarely reaches the public,” the LA Times wrote of the leak.) And the theory that Roberts switched his vote to preserve the integrity of the court as an institution? That’s what they said about Kennedy with regard to the abortion case. In short, while the behind-the-scenes maneuvering of the various justices is no doubt fascinating, the process by which the court upheld the ACA wasn’t as anomalous as a lot of the reporting is suggesting.
Seth Millstein is a writer for ShortFormBlog and The Daily. Reach him at @SethMillstein.