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Why Conservatives Will Never Forgive Justice Roberts for His Decision on Health Care by Professor Richard Birke During his nomination to be a justice and later the chief justice of the U.S. Supreme Court, John Roberts was widely believed to be a tried-and-true conservative. When he was sworn in, conservatives rejoiced. One commentator wrote that conservatives “leaped from their seats with applause” after he took the oath of office, and that the “private reception for Roberts … felt like a cel-

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ebration, as prominent conservatives from every administration gathered with Republican senators, staffers and outside advisors, as well as Justices Thomas and Scalia. The mood was almost euphoric …” However, the reaction was quite different after the decision earlier this year in NFIB v. Sebelius, otherwise known as the Patient

Protection and Affordable Care Act Case. Roberts wrote the opinion that upheld the act, and conservative commentators across the nation excoriated him for doing so. Louisiana’s Republican Governor Bobby Jindal called the decision “extremely disappointing” and Republican U.S. Representative Mike Pence likened the decision to the 9/11 attacks. Some news commentators called for Roberts’ impeachment, and one went so far as to suggest that the decision was a by-product of Justice Roberts’ epilepsy medication. Let’s suppose that Roberts, like the proverbial leopard, cannot change his spots — that he really is the conservative most suppose him to be. He probably will, as he has in the past, author a string of decisions supporting the conservative side of most cases. Moreover, if the health care decision is an outlier, the principle of regression to the mean suggests that most or all of Roberts’ future decisions will hew more closely to the conservative side. But will the expected string

Willamette Lawyer | Fall 2012 Vol. XII, No. 2