I asked Lee about speculation that the joint dissent filed by Antonin Scalia, Anthony Kennedy and Clarence Thomas and Alito – which argued for invalidating all of Obamacare – was originally drafted as the majority opinion. Among other things, the dissent spends much of the time attacking the government’s arguments, as well as a dissent from Ginsburg, and only passingly refers to the actual majority opinion. This has been seen by some as a strong indication that Roberts may have changed his vote.
“I noticed the same thing,” Lee said. “Although I don’t know exactly what happened within the Court, these are the kinds of signals you tend to see when something like that does happen. It made no sense to me that the dissent referred repeatedly to the ‘Ginsburg dissent’ instead of the ‘Ginsburg concurring opinion,’ for example. And it was written like it was expected to be a majority opinion. And although I don’t know exactly what happened there, that is the sort of thing you tend to see when somebody switches their vote.”
Did Obama’s “intimidation tactics,” to borrow Lee’s phrase from his interview with Philip Klein, in preemptively attacking the Court put enough pressure on Roberts to get him to flip? I don’t really believe that. The One’s gotten ferocious pushback from our side for grumbling about the Court; he’s been conspicuously quiet about it since oral arguments were held on O-Care back in March aside from some half-joking lines at his fundraisers about having to revisit health care in his second term. Some liberals were so worried about him rolling over and playing dead if the Court struck down the law that they felt obliged to beg him publicly to get angry if things didn’t go his way. And of course, poll after poll shows the balance of public opinion on the side of tossing the law in the trash. Even Anthony Kennedy felt comfortable in voting to cashier the whole thing. Yet somehow John Roberts was afraid of The One, whom virtually no one listens to anymore? C’mon.
Orin Kerr wonders if maybe Roberts didn’t change his vote after all:
So it might have happened like this. The Justices voted at conference and there were five votes to uphold the mandate on the tax argument and at least five votes to strike down or modify the medicaid expansion. The first group is Roberts plus the liberals, and the second group is Roberts plus the conservatives. Roberts is the swing vote in this case and this is the biggest case of his time on the Court, so he quite naturally assigns the opinion to himself. Roberts doesn’t know how many votes his opinion will get, and he tries to write in a way that might persuade some unlikely votes to join him. Maybe Justice Kennedy will change sides and make the case 6-3, which would avoid the dreaded 5-4 vote. Or maybe he can get some liberal votes to join the section blocking the medicaid expansion…
After Chief Roberts circulates his majority opinion, the conservative dissenters decide to write a joint opinion in response. Why a joint opinion? It took Roberts a while to circulate his proposed majority opinion, so the time pressure is particularly intense on the dissenters. The dissenters have a lot [of] issues to cover and very little time in which to say it, and making it a joint effort allows them to pool resources. They divide the pieces with different Justices working on different issues. The result is a 65 page opinion that is a bit of a patchwork, with different parts by different Justices having different lengths and some portions not really necessary (like severability) included. Some parts may have been drafted before the Roberts opinion circulated, which might explain why parts are duplicative of the Roberts opinion.
Interesting, but this doesn’t explain why the conservative opinion bizarrely passes on the chance to unload on Roberts for his ruling on the tax issue. If Roberts was voting to uphold the mandate on tax grounds from the beginning, Scalia et al. would have had plenty of time to write a withering dissent on that point. Instead, the tax section in the conservative opinion is framed as a straightforward rejection of the government’s argument — just like you’d see in a majority opinion — with nary a word about Roberts’s tiebreaking vote the other way. It’s beyond strange. The simplest explanation is that Roberts was with the conservatives on that point until late in the game, when he finally switched and left them with so little time to respond that they were forced to stick with their majority draft as a “dissent” instead. (Alternately, maybe the conservative bloc was so pissed off at Roberts that they refused to re-shape their opinion into a traditional dissent, precisely so that Court-watchers would pick up on the “signals” of a vote switch that Lee mentioned.) But even the vote-switch theory has problems. For one thing, why would Roberts switch so late? There’s been left-wing media pressure on the Court since the day they took the case. Roberts hasn’t heard anything from them lately that he didn’t hear from the very beginning. Another thing — if Kerr is right that Roberts was voting with the conservatives from the beginning on the Commerce Clause issue, why do their opinion and his opinion both contain sections addressing the Commerce argument? Why didn’t the four conservatives simply sign on to Roberts’s section on Commerce to form a majority? If there was a vote switch at the eleventh hour, it’s mighty odd that anyone devoted time to drafting an entirely superfluous second opinion on the Commerce point.
One more theory via David Frum, quoting a reader who clerked for an appellate court:
I imagine the dissenters either had Roberts’s vote or that Roberts left the post argument conference without commiting to a side and saying something to the effect of “let me see how it writes.” He certainly didn’t trust the dissenters, as he clearly instructed his law clerks to begin working on an alternative majority opinion (the final product was too polished and too long to have been written at the last minute). And he waited to see what was written.
What was written was not measured judicial analysis, but rather an opinion that started with a goal — throw the bill out — and then figured out how to get there, blowing by any precedent in its path. The challengers were right in one respect, in that the mandate was a unique use of federal power that had not been considered by the Supreme Court. But severability had been considered by the Court literally dozens of times, and the four dissenters charged right by what those decisions had said.
So Roberts was left with a choice: engage in the severability analysis himself (a messy task indeed) or find some other way to uphold the bill. He chose the latter, and the result is what we have today.
I’m unconvinced, although it’s natural that an argument involving hyperpartisan conservatives alienating “reasonable” moderates like John Roberts would appeal to Frum. Two problems here. One: Would Roberts really have left the first conference undecided, smugly inviting the two ideological blocs on the Court to dazzle him with their opinions and win him over? I’d imagine that would have pissed off everyone, especially in a case of this magnitude. Since when does any justice get to pass on the initial vote in order to position himself as the ultimate decider? Two: Why would Roberts switch his vote to uphold the mandate just because he was unhappy with the conservatives’ severability section? If that was the case, he could have persuaded the liberals to join him in creating a five-justice majority for a much narrower holding on severability. That arrangement would have been a bit odd given that the liberals wanted to uphold the whole law, but if there were already five votes against the mandate, they surely would have joined Roberts on severability in the interest of saving as much of the law as possible.
There is one good point here, though: Roberts’ opinion was indeed polished enough to make the reader think he and his clerks had spent a lot of time on it. But … if he had enough time after his alleged vote switch to produce a cohesive opinion, why didn’t Scalia et al. have enough time to produce a direct rebuttal to his tax argument in dissent? Granted, the other justices were writing majority opinions for other cases whereas Roberts had been focused entirely on this one over the past few months, but surely they could have squeezed in an extra section in dissent on the most explosive Supreme Court case in ages. I don’t get it.