Discord at Supreme Court is deep, and personal

Inside Justice Roberts' health care decision
John Roberts

(CBS News) Discord at the Supreme Court is deep and personal after Chief Justice John Roberts' surprise decision to side with the liberal justices in upholding a large portion of the president's health care plan. This discord is going to affect this Court for a long time - and no one has any idea how it will be resolved.

Conservatives feel a sense of betrayal. They feel that Roberts changed his mind for the wrong reasons.

If Roberts had been with the liberals from the beginning, sources tell me that would have been one thing; but switching his position - and relatively late in the process - infuriated the conservatives.

Of course it's unclear why he switched. He may have been focused solely on the law. But that is not what some of his colleagues believe.

Roberts initially sided with the four conservatives to strike down the heart of the health care law - the individual mandate, the requirement that all Americans buy insurance or pay a penalty.

What the healthcare ruling means for you

When he changed his mind and joined with the liberals to uphold the law instead, he tried furiously - with a fair amount of "arm twisting" - to get Justice Anthony Kennedy to come along. Kennedy sometimes breaks with conservatives, so Roberts likely saw him as his best hope.

But on this issue of federal power, Kennedy was firm. The conservatives refused to even engage with Roberts on joining his opinion to uphold the law. They set out writing their own opinion - they wrote it to look like a majority decision, according to sources, because they hoped Roberts would rejoin them to strike down the mandate. Kennedy relentlessly lobbied Roberts until the end to come back. Of course he did not, and the conservatives' decision became a dissent.

Now this conflict has been brewing for some time. You can trace it back to the first full term of the new Roberts Court. That term had several controversial cases, including school busing and abortion. Liberal justices thought Roberts had signaled he would be open to compromise and be more moderate. But he sided with conservatives that year, making the liberals feel misled. They were furious. As one said at the time: "He talks the talk, but won't walk the walk."

Conservatives were angry at Roberts, too - they thought he gave the liberals false hope. He ended up just pushing them further away.

That tension eased over the summer of 2007. But this conflict among conservatives - after Roberts "walked the walk" with liberals - may take much longer to resolve.

It's not unheard of for the Court to erupt into conflict; Bush v. Gore in 2000 was a famous example. But some people say you would have to go back nearly 70 years to see this kind of tension, and almost bitterness, that now exists among the justices.

  • Jan Crawford
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    Jan Crawford is CBS News Chief Political and Legal Correspondent. She is from "Crossroads," Alabama.