ObamaCare: Was the conservative dissent on the mandate originally a majority opinion?

posted at 4:01 pm on June 28, 2012 by Allahpundit

There’s a fair reason to think so and a not-so-fair reason. First, the not-so-fair:

Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it?

Scroll down to page 138 of the justices’ opinions to see Ginsburg’s opinion described as a “dissent.” Minor problem with this theory: Her opinion was a dissent. She and the liberals lost on the Commerce Clause argument over the mandate, which is what the conservatives’ joint opinion was addressing when it referred to her view as dissenting. The terminology’s not inaccurate, just a little odd given that it was the conservative side that ultimately ate a big ol’ shinolaburger today.

Ed Whelan’s reason for thinking the conservative opinion was originally a majority opinion is more convincing:

The joint dissent issued by Justices Scalia, Kennedy, Thomas, and Alito certainly reads as though it were written to be the majority opinion. Among other things, the joint dissent’s discussion of the taxing power doesn’t respond to the Chief Justice’s opinion (indeed, I think it never even cites it). Rather, it addresses only the government’s argument. By contrast, the Chief’s opinion repeatedly takes issue with the joint dissent. This strongly suggests to me that the joint dissent was written first, as the proposed majority opinion, but failed to garner the fifth vote from the Chief…

One serious problem with the above theory is that it’s difficult to reconcile with the fact that the Chief would have assigned the majority opinion in the first place. An alternative theory is that the joint dissenters wrote their opinion as they did, after the Chief circulated his draft, in order to signal their deep dissatisfaction with his draft. I now lean towards this alternative theory.

I might have missed something but a quick skim through the conservative opinion has me thinking Whelan’s right: While they do address Ginsburg by name and answer her arguments directly, at no point do they address Roberts — even in the crucial section on the taxing power that ultimately upheld the mandate. (The opinion starts on page 127 in case you want to check our work.) Instead, their arguments are addressed to “the Government,” i.e. the DOJ and the Solicitor General. It strikes me as deeply odd that they wouldn’t tackle the chief head on when discussing the linchpin of the case given that it’s the main point of contention between him and them. And something else is strange too: The conservative opinion goes on to argue in methodical detail why the rest of the law shouldn’t be severable from the mandate. Quote:

The opinion now explains in Part V–C–1, infra, why the Act’s major provisions are not severable from the Mandate and Medicaid Expansion. It proceeds from the insurance regulations and taxes (C–1–a), to the reductions in reimbursements to hospitals and other Medicare reductions(C–1–b), the exchanges and their federal subsidies (C–1–c),and the employer responsibility assessment (C–1–d). Part V–C–2, infra, explains why the Act’s minor provisions also are not severable.

Major provisions of the Affordable Care Act—i.e., the insurance regulations and taxes, the reductions in federal reimbursements to hospitals and other Medicare spending reductions, the exchanges and their federal subsidies, and the employer responsibility assessment—cannot remain once the Individual Mandate and Medicaid Expansion are invalid.

Why would they bother with an intricate analysis of which provisions were severable from the mandate if this opinion was written in the knowledge that the mandate was ultimately being upheld? You only need step-by-step instructions on severability if you’re in the majority and obliged to provide lower courts with guidance on which parts of the statute are still operative and which aren’t. If you’re writing in dissent, that’s a waste of time. Which makes me think … maybe when this was written the author wasn’t in dissent.

So what happened here? Could be that this was written by the four conservative justices as a bizarro-world majority opinion as a sort of middle finger to Roberts on how things should have gone. But in that case, why didn’t they add language attacking his opinion on Congress’s taxing power specifically? It makes more sense to think this was the majority opinion at some point — perhaps written by Roberts himself (since he likely assigned the opinion to himself from the beginning) and then discarded after he switched his vote. The other conservatives then salvaged his opinion, polished it up a bit, and republished it as their own, possibly as a tacit rebuke to Roberts or possibly because Roberts switched so late in the game that there wasn’t time to draft something new from scratch. Or, as yet another alternative, maybe Roberts was on the fence all along, which spurred the conservative bloc and the liberal bloc to each write their own “majority” opinions in hopes of persuading him to join them as the fifth vote. When the conservative bloc ended up being disappointed, they left their opinion more or less as is, whether due to time constraints or pique or both.

Any other theories? I don’t buy the idea that Roberts flipped at the last minute because of all the liberal hacks screeching at him on MSNBC and in the New Republic. That was always a fait accompli. If he was going to vote to uphold for that reason, he would have been a solid yes from day one and the conservative opinion here would have looked very different. Exit quotation from Romney’s website: “As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.”


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages: 1 3 4 5

Roberts is a coward who feared the Chicago Mafia. Someone made him an offer he couldn’t refuse. Maybe like, “Johnny boy, ya have a booootiful family, be a bad thing sompin happin ta em. Jus sayin’”

they lie on June 28, 2012 at 8:40 PM

Crispian on June 28, 2012 at 8:33 PM

You should point out that the SCOTASS is different from all other courts in that it can do whatever the hell it wants. It is distinctly different in this respect, since it is the highest court and cannot be appealed, so it is free to do anything. It operates under no law, really.

The only restriction on the SCOTASS is Congress impeaching the f@#kwads when they do stuff like this (even though they only have to consider them failing “good behavior” which this decision clearly violates) … but that never happens.

ThePrimordialOrderedPair on June 28, 2012 at 8:42 PM

I agree. One thing I learned from suffering through the Matt Millen Lions era – don’t look for sunshine where there isn’t any.

bw222 on June 28, 2012 at 7:58 PM

There was sunshine during that time, it was called the Red Wings. :)

Flange on June 28, 2012 at 8:44 PM

Bush the RINO that just keeps on giving. Obviously Mrs Roberts told her husband that she enjoys going to those elitist parties and he had better not mess it up for her. I mean talk about witting law from the branch . Obama argued that this is not a tax and Roberts re-wrote the law saying it is a tax so that he could vote to up hold it. NOT HIS JOB.

pwb on June 28, 2012 at 8:44 PM

My theory is that Roberts changed his mind after Ginsburg offered him sexual favors.

NNtrancer on June 28, 2012 at 9:14 PM

I will leave the political fallout of all of this to more capable folks, but I want to add one final thought about disappointing Supreme Court decisions. When the Supreme Court ruled in Kelo v. City of New London that eminent domain could be used in just about any situation the government wished, it felt like a devastating blow to liberty. However, since that decision, nearly every state in the union passed laws aimed at curbing eminent-domain abuse, a result I certainly did not anticipate the day the ruling came down. As my former Texas senator Phil Gramm used to say, no single event is as good or as bad as it may first appear.

From NRO. The ink is barely dry on this. Sleep and get up tomorrow ready to do battle for liberty.

Wethal on June 28, 2012 at 9:23 PM

Benedict Roberts decided how he wanted to vote before he decided the mandate was a tax.

farsighted on June 28, 2012 at 8:28 PM

Not likely since Scalia’s dissent doesn’t mention Roberts. Seems this was a last minute change on Roberts’ part, and by last minute I mean within last week or so, but prior to Scalia’s scathing take down of SB1070, I realize now that Scalia was more than pissed at that point and not only about SB1070.

Whther Roberts was bought, threatened or black mailed, he should resign, IMO, since this decision goes against any common sense, even at moron, err, liberal level.

riddick on June 28, 2012 at 10:45 PM

I just posted this in the Pelosi thread and realized that it would have been better posted here. I apologize for the double post but I REALLY need to rant, so here it is again.

Not sure why I’m writing this, but it makes me feel better to do it. Please bear with me.

John Roberts is a good man. I would even say that he is often a conservative.

But he is a don’t-make-waves conservative. In its very nature, conservatism has an element of not making waves. But no “movement conservative” (i.e., true conservative) could have done what Roberts did today. Here I am talking not about the health bill specifically but his reasoning behind upholding it. I’m convinced that he just didn’t want to make certain media and political bullies dislike him.

What we need, in EVERY elected office and judicial appointment, is what I will call testicular conservatives, not don’t-make-waves conservatives. In other words, conservatives who have the intestinal fortitude (others may wish to use stronger language) TO DO WHAT IS RIGHT, regardless of what others think.

Our heroes of the past all had it — Patrick Henry, George Washington, Sam Houston, Ronald Reagan, etc. They didn’t care what people thought. They weren’t tricky or gimmicky (that was left to the likes of Franklin Roosevelt, LBJ, Kennedy, Clinton, and Obama … that is, Democrats). They just called ‘em as they saw ‘em, took a stand (often at the risk not just of their personal popularity but of their very lives), and fought for what was right.

Ironically and sadly, most of our Republican male elected officials don’t have the cajones needed. Alito, Thomas, and Scalia all do, as do some Republican governors, but increasingly our elected women have “bigger testicles” than our men do. Sarah Palin, Michelle Bachman, et. al.

It’s time to stand up and fight.

We need to win in November, yes, but EVEN IF WE LOSE THEN, we need to keep fighting.

One of my great heroes is Winston Churchill. He was famous for saying “Never give in. Never, never, never, never given in.” Here is the entire quote:

“Never give in — never, never, never, never, in nothing great or small, large or petty, never give in except to convictions of honour and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy.”

Good words to remember, and some context makes it even more powerful. He said that in 1941, when the outcome of World War II was far from certain and the worst fighting was still to come. Hard to imagine now, but there was a very real chance that Britain and all of the civilized world would be destroyed and lost forever.

He said it in front of a bunch of school boys at his alma matter, the Harrow School. Before he was introduced, the boys sang their school song which had been updated to include a stanza in Churchill’s honor. One of the lines said, “Though long the fight / we know that right / Will triumph in the end!”

Our call to action today is to remember that the fight is long. I think one of our problems as conservatives is that we all want to cast one magic vote and go back to our own business. Well, for the rest of our lifetimes we do not have that luxury if we want to save this country. It’s going to require voting in every primary, runoff, and election, and voting for the most rabidly conservative who’s running.

The time for squishy moderates is over. Too much is at stake.

We can do it. It’s just going to take a long time and be difficult. But we must never give in and never give up! We owe it to the great heroes of our nation’s past who themselves never faltered.

Thanks for letting me rant.

texgal on June 28, 2012 at 10:50 PM

Roberts re-wrote the law saying it is a tax so that he could vote to up hold it. NOT HIS JOB.

pwb on June 28, 2012 at 8:44 PM

This is the part that really pisses me off. Why even have Congress when SCOTUS now can write laws on the fly and rule on them in one fell swoop. Why even have 9 judges on the court when only was was needed in this case.

riddick on June 28, 2012 at 10:50 PM

texgal on June 28, 2012 at 10:50 PM

Funny. When I and a few others pointed out that unless we, as a group, find our principles/balls and stick to them, same way liberals do, there is no way we can ever restore this once great country, we were and are still attacked for our views by every RINO, oh sorry, “compromisers” on the board.

RE: But he is a don’t-make-waves conservative.

Its like saying, She is only slightly pregnant. One is either a conservative or not. No middle ground here, IMO. This “middle ground” is what got us to this point and I hate to say it, but “middle ground” is a full on RINO mode. Same as anyone calling themselves “independent” when, in fact, most of them vote liberal each and every time. Labels, same as today when a slavery was called a tax by Roberts, mean absolutely nothing when actions so greatly diverge from labels.

riddick on June 28, 2012 at 10:59 PM

riddick on June 28, 2012 at 10:59 PM

The irony is that I believe that Roberts made his decision to “preserve” his judicial legacy, when in fact he will go down in history as the catalyst for bringing about the switch from the sickness of the slow progressive movement of the last 50 years to the America that was first conceived. I agree with you that a RINO is no conservative, but sometimes it takes a shot to the gut to make people assess what they really believe! This is our gut shot! THIS IS IT! And we can “never, never, never, never give in!”

texgal on June 28, 2012 at 11:17 PM

Roberts is a total scumbag. I hope he get’s cancer and has to appear in front of a government dealth panel to get treatment. That would be justice!

Dollayo on June 29, 2012 at 12:44 AM

Comment pages: 1 3 4 5