Recently-Released “Confidential” Documents Reveal Reasons Why Justice Roberts Switched His Vote

November 25th, 2012

Now we may know the reason behind the switch in time that saved nine. I speak of course about Justice Owen Roberts in West Coast Hotel v. Parish (oh did you think I meant Chief Justice Roberts’s vote in NFIB v. Sebelius?).

This article published in the GreenBag reveals recently discovered notes from Reporter Merlo Pusey’s 1946 interview with Justice Roberts. The notebook was kept in the vaults at BYU’s Special Collections.

This spring, communications professor Ed Carter unearthed the key to the mystery while digging through materials from the late Merlo J. Pusey, a Mormon Pulitzer Prize-winning journalist.

“I came upon a notebook marked ‘Confidential’ and, obviously, I got excited,” Carter said. “I wanted to find out what was in that notebook that Pusey didn’t want to have publicly known.”

The unpublished notes of an interview with Justice Owen J. Roberts provide a previously unknown account for a landmark, left-shifting 1937 vote by the conservative Roberts.

So what motivated Justice Roberts? Broccoli?

But Pusey’s notes from a May 21, 1946, interview with Roberts indicate he had mixed motivations involving political, strategic and legal considerations.

“Roberts did not wilt under political pressure from Roosevelt, but he also did not ignore public opinions and circumstances,” Carter said. “Roberts recognized that being set apart from politics does not mean being ignorant of contemporary events and attitudes.”

Pusey’s notes indicate Roberts’ switch may have been influenced more by non-political factors.

“It is difficult to say what makes a judge decide as he does,” Roberts says, according to Pusey. “Public outcry against an opinion is bound to have some effect on a man’s thinking when it is a question of degree – of how far we can go.”

Maybe one day we will learn of John Roberts’s motivations…

H/T David Wagner