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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsEvidence that the Votes Shifted After Conference
Since I haven't studied the ruling, posting this is not a personal endorsement of the theory (that there are textual clues that the conservative dissent was originally crafted as a majority decision) but it's any interesting topic.
After a preliminary read of the opinions in the Health Care Cases (National Federation of Independent Business v. Sibelius), there seems to be substantial evidence that the initial vote in conference was to strike down the mandate as unconstitutional. The opinion of Justice Scalia, Kennedy, Thomas, and Alito looks like parts of it were once a majority opinion. And there are passages that still read as a majority opinion responding to a dissent by Justice Ginsburg. For example:
The dissent claims that we fai[l] to explain why the individual mandate threatens our constitutional order. Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitutions division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government.
Language like this is highly suggestive of a majority opinion. The reference to the dissent and "we" strongly suggests that the "we" was a majority of the Court. This suggests that Justice Roberts switched his vote. There are other conceiveable explanations, but in my opinion, this evidence is very strong indeed.
http://lsolum.typepad.com/legaltheory/2012/06/evidence-that-the-votes-shifted-after-conference-initial-vote-to-declare-mandate-unconstitutional.html
David Bernstein June 28, 2012 6:10 pm
Reader Stuart Buck provides more detail as to why the dissent reads like a majority opinion (see also Deborah Pearlstein at Balkanization):
1. The dissent has a whole section on severability that is completely beside the point except on the assumption that the mandate had been struck down, and now We have to decide whether and what to preserve of the rest of the act now that the mandate is gone.
2. Notice also that his response to Roberts is tacked on at the end, rather than worked into the body of whatever he was writing (see page 64 of his dissent). For example, one would have expected Scalia to directly take on Roberts application of the Anti-Injunction Act, but his brief section on that act only mentions what the Government argues (see pages 26-28).
3. On top of that, Scalias sections on the Commerce Clause and the Medicaid Expansion are just as long or longer than what Roberts writes (Scalia wrote 16 pages on the Commerce Clause and 21 pages on the Medicaid Expansion, compared to Roberts 16 pages and 14 pages respectively). Yet Scalia never writes in the vein of saying, I agree with the Chief Justices opinion, but write to add a crucial discussion of some complexity. His analysis agrees with Roberts, and makes essentially the same points in We language. Theres no reason for Scalia to do this at such length, unless his opinion is what came first.
UPDATE: Ed Whelan notes a related theory: Roberts assigned the opinion to himself, and wrote most of what became the four-Justice dissent. He then switched on the tax issue, and the four dissenters adopted most of his original majority opinion as a dissent. This would explain why the dissent is unsigned. Other blogs are noting that Justice Ginsburg directs much of her ire at the Chief, which is the sort of things Justices do when they think theyve lost someones vote, not when they are trying to keep a tenuous vote to uphold uphold the law in question on board.
http://www.volokh.com/2012/06/28/more-hints-that-roberts-switched-his-vote/
yardwork
(61,813 posts)It seems like there was a leak from the Supreme Court to certain news outlets and the assumption was that the law was struck down. Instead, Roberts had changed his vote. I wonder when he changed his vote. I wonder if the fact that he had was kept a secret from others in the building. It's weird. It seems like something very interesting happened.
republicans called no take backs. They're going to be REALLY pissed at Roberts now.
yardwork
(61,813 posts)freshwest
(53,661 posts)SalviaBlue
(2,918 posts)freshwest
(53,661 posts)former9thward
(32,178 posts)The reason CNN and Fox jumped the gun was because of the summary at the beginning of the opinion. The summary started going through the arguments and the first thing it says is that the mandate is unconstitutional. CNN, etc. read that and immediately aired that. If they had continued to read they would have seen the mandate was treated as a tax and that was constitutional.
yardwork
(61,813 posts)1StrongBlackMan
(31,849 posts)wasn't that the holding of THIS decision ... that the I/M failed constitutional muster under a Commerce Clause analysis; but could proceed under the Federal Government's taxing authority?
I'm inclined to think that, in the coming days, there will article after article rising the spector of controversy and "Something Ain't Right."
cthulu2016
(10,960 posts)soI have no real opinion. But I thought it a blog entry worth sharing because the idea of textual clues to a dissent having once been a majority opinion is a fun idea.
cthulu2016
(10,960 posts)Tx4obama
(36,974 posts)Tx4obama
(36,974 posts)cthulu2016
(10,960 posts)I added some of the Volokh stuff to the OP
msanthrope
(37,549 posts)notice. They didn't do their editing job. They left that deliberately.
On edit...or it could be that he's referring to Ginsburg's dissent on the CC issue. I like the former, better.
alcibiades_mystery
(36,437 posts)So this whole line of reasoning doesn't really do it for me.
former9thward
(32,178 posts)It was joined by Scalia, Thomas and Alito.
Dawson Leery
(19,348 posts)Though less so, opinions have shifted after the first drafts (opinions) have been written.
cthulu2016
(10,960 posts)that the switch was made so late that there was not time to entirely obscure that Ginsberg's decision was originally written in the minority, and the unsigned (but thought to be Scalia) dissent was written as the majority opinion.
It is proper and normal for a justice to change opinion. But decisions so ragged as to retain textual clues to a previous reality would be big fun for fans of SCOTUS lore.
(And offers an amusing human clue to Scalia's extreme pissiness... extreme even by Scalia standards)
Proles
(466 posts)the other conservatives were to strike down the entire piece of legislation, even uncontroversial provisions which are clearly not in violation of the constitution. Maybe he especially saw the insanity in the eyes of Scalia.
Maybe he got sick of Kennedy always being called the "moderate" and just wanted to prove that the Supreme Court wasn't as partisan as it was made out to be.
Who can say for sure?
Conspiracy theorists will now say Obama sent "thugs" to strong arm Roberts... lol.
1StrongBlackMan
(31,849 posts)rush limbaugh "reported" on it yesterday and his faithful followers (that deny listening to him) are repeating the narrative, as fact, on on-line comment sections of papers across the nation.
burrowowl
(17,656 posts)SweetieD
(1,660 posts)Regarding Scalia referencing the "Ginsburg dissent".
I am a practicing attorney that does a lot of writing and motion practice. I honestly can not recall reading a particular opinion (mostly state and federal circuit courts), where a judge used the term dissent when speaking about a judge who has ruled on majority opinion even if that particular judge disagreed with a particular point. I do wonder why this term was left in the opinion. It does seem like an error and leads me to believe that the decision may have been changed.
cthulu2016
(10,960 posts)That is, the fruits of textual analysis were subsequently confirmed by reporting/leaks/sources.