The unfortunate leaks regarding the Supreme Court’s decisional process in NFIB v. Sebelius share a resemblance with the leaks about the Burger Court that provided the narrative for The Brethren. The exposure of inside information then was driven in large part by frustration with the Chief Justice. That is likely the case now as well, although this Chief Justice’s switch is far different from the kind that created such ill will on the Burger Court.
It is standard lore that Chief Justice Burger occasionally manipulated his Conference vote in order to control an opinion assignment that he did not deserve. Discussing Chief Justice Burger, one unnamed justice reportedly told Bernard Schwartz, “The great thing about Earl Warren was that he was so considerate of all his colleagues. He was so meticulous on assignments. [But] all too damned often the Chief Justice will vote with the majority so as to assign the opinion, and then he ends up in dissent.” (Schwartz, Ascent of Pragmatism, 13-14) As Schwartz’s work and The Brethren also reveal, Burger assigned the opinion to himself in an important school-busing case even though he was in the minority (Swann), and Burger assigned Roe v. Wade to Justice Blackmun even though it was unclear that Burger was in the majority (and therefore unclear whether he had the authority to assign the opinion).
The leaks about NFIB v. Sebelius do not suggest that anything of this sort happened. Rather, Chief Justice Roberts voted sincerely at Conference to hold the individual mandate unconstitutional and, appropriately, assigned the opinion to himself. Then in the course of writing it, he switched.
Perhaps some of the Justices view Chief Justice Roberts’s shift more through the lens of their perception of Chief Justice Rehnquist. If Rehnquist had been part of a majority to hold the mandate invalid (and there is every reason to believe he would have been), it is very unlikely that he would have switched his vote. Yet that is not because he was never suspected of tailoring his vote based on concern about perceptions of the Supreme Court, as may have been the case in Dickerson.
In the end, though, the comparisons are of limited utility. These kinds of decisions are intensely individual. The way to evaluate them is not motivational attribution but assessment of the resulting legal merits.