Salon: Roberts wrote most of the conservative dissent in the ObamaCare case too
posted at 5:01 pm on July 3, 2012 by Allahpundit
I wondered about this on the afternoon of the decision. It stands to reason: If, as most everyone believes, Roberts initially assigned the majority opinion to himself and then ended up flipping at the eleventh hour, the four conservative dissenters would have had to scramble to come up with an opinion of their own while handling the rest of their caseload. (Roberts authored no other opinions over the final two months of the term so he and his clerks could conceivably have drafted something new from scratch late in the process.) The easiest way to do that would be to salvage Roberts’s orphaned majority opinion — or, at least, the bits he wasn’t keeping for himself — and re-work as necessary. Maybe they took the sections he discarded on the tax power and severability, tacked on their own section rejecting the Commerce Clause argument, and called that a dissent. Using Roberts’s own words against him would have been a pointed rebuke to him for flipping, even if the Court and its clerks are the only ones with enough background on this process to fully appreciate it.
My source insists that “most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’ chambers in April and May.” Only the last portion of what eventually became the joint dissent was drafted without any participation by the chief justice.
This source insists that the claim [in Jan Crawford's CBS story] that the joint dissent was drafted from scratch in June is flatly untrue. Furthermore, the source characterizes claims by Crawford’s sources that “the fact that the joint dissent doesn’t mention [sic] Roberts’ majority … was a signal the conservatives no longer wished to engage in debate with him” as “pure propagandistic spin,” meant to explain away the awkward fact that while the first 46 pages of the joint dissent never even mention Roberts’ opinion for the court (this is surely the first time in the court’s history that a dissent has gone on for 13,000 words before getting around to mentioning that it is, in fact, dissenting), the last 19 pages do so repeatedly.
That’s lefty law prof Paul Campos writing for lefty web zine Salon. Did a mischievous liberal clerk leak to them in order to embarrass the conservative dissenters? Could be, except that … this is more embarrassing to Roberts than to Scalia and company. The idea that his words are on both sides of the Court’s decision makes the outcome seem that much more bizarre and his supposedly principled change of heart seem that much more dubious. He’s talking, almost literally, out of both sides of his mouth. It’s a shot at his credibility and the Court’s institutional legitimacy, which was supposedly the basis for his decision, more than it is a shot at the conservative dissenters. Why would a liberal clerk want to sandbag him for siding with them on the biggest case they’ll ever rule on?
Then again, if this is true, why wouldn’t the (presumably conservative) Court sources who leaked to Jan Crawford have simply said so? Obviously, they didn’t borrow his discarded opinion because they’re lazy. They borrowed it because they were pressed for time and/or because they wanted to make a point — or, just maybe, because they held out hope to the bitter end that he’d switch back and join them in striking down the law. By keeping the dissent intact as a potential majority opinion rather than larding it up with language lashing out at Roberts, the four conservatives made it as easy as possible for him to reconsider and climb back aboard right down to the wire. To my mind, that’s the best explanation for the tone of the opinion, the inclusion of the otherwise gratuitous severability section, and the lack of any references to Roberts’s opinion. They weren’t working on a dissent, they were working on a shadow majority, ready to go right out of the box in case Roberts came back into the fold. (Crawford notes that Kennedy was lobbying Roberts up to the last minute, in fact.) That doesn’t settle the issue of who authored most of the eventual dissent — maybe it was mostly Roberts’s draft or maybe it really was co-drafted by Scalia, Kennedy, Thomas, and Alito with an eye to winning Roberts back over — but it settles most everything else.
Here’s Krauthammer accusing Roberts of letting the left intimidate him. Exit question via TNR: Were Thomas and Kennedy the CBS leakers?
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thatsafactjack on May 14, 2013 at 2:43 PM
++++
pambi on May 14, 2013 at 2:45 PM
Figures…It is clear a lot of the law degrees handed out by Harvard are nothing but political advocacy degrees.
I wonder what type of law does he practice? Constitutional, Criminal, Patent, etc.
William Eaton on May 14, 2013 at 2:47 PM
I see the scumbags are still keeping some folks blood pressure up.
Carry on. I’m sure the trolls and HA enjoy y’all spending quality time lining their pockets.
cozmo on May 14, 2013 at 2:48 PM
qwertASRDRDDSAWAS1DFGSDFSGHG
thatsafactjack on May 14, 2013 at 2:48 PM
An expert in fraud with a specialty in libel.
NotCoach on May 14, 2013 at 2:48 PM
As usual, you have forgotten.
A while back RWM took you to task.
And you went to dinner.
Damn, you are stupid !
Jabberwock on May 14, 2013 at 2:48 PM
Probably Divorce, so he can advocate for himself in the future. And you know what they say about a man who acts as his own lawyer…
Liam on May 14, 2013 at 2:48 PM
Perverted liberal.
cozmo on May 14, 2013 at 2:49 PM
Nice little company you got there….be a shame if anything happened to it.
MTF on May 14, 2013 at 2:49 PM
thatsafactjack on May 14, 2013 at 2:50 PM
He has stated that he really was not much of a law student, so after he graduated he went into something else. I’m figuring it’s hospitality, cause he’s just so ingratiating.
BeachBum on May 14, 2013 at 2:53 PM
Can I contribute my urine submerged likeness of teh one and a fecal smeared image of moochele?
freedomfirst on May 14, 2013 at 2:53 PM
So he practices Transgender Animal Law?
You know not to be funny but does Harvard offer Transgender Animal Husbandry now? Yes I am serious considering the massive increase in the last 20 years in idiotic degrees that are useless no matter what school you graduated from.
William Eaton on May 14, 2013 at 2:55 PM
That depends: Do you want to be impoverished by the IRS, or have your land stolen by the EPA?
NotCoach on May 14, 2013 at 2:57 PM
Ok…It is all clear now. He went from a law student at Harvard to a Transgender student at Harvard. Not that there is anything wrong with that….
In fact that might be an improvement…
William Eaton on May 14, 2013 at 2:58 PM
AGAIN, nobrain is NOT a graduate of Harvard or ANY law school.
Period.
Story.
End of.
The very first mention nobrain made of its alleged Harvard Law degree was in an attempt to try and bolster Obama’s credentials. Nobrain, erroneously, argued that the ELECTION of the President of the Harvard Law Review, as is the case with most law reviews, was a MERITORIOUS PROCESS. It claimed to know this because it went there.
Elections are not meritorious processes.
Resist We Much on May 14, 2013 at 3:00 PM
Sometimes I hate this blog, but the jokes/repartee here are why I keep coming back – ROFL!
22044 on May 14, 2013 at 3:01 PM
You know what’s hilarious about that? He talks about it like a Harvard Law degree is a BS, but you need a BS to get into a law school. How many people in this world get a BS, move on to law or medical school (and graduate!), then never actually practice law or medicine?
NotCoach on May 14, 2013 at 3:04 PM
Succubus in chief
dirtengineer on May 14, 2013 at 3:04 PM
That’s funny right there. I don’t care who you are.
There Goes the Neighborhood on May 14, 2013 at 3:04 PM
From now on:
nonpartisanElitist on May 14, 2013 at 2:40 PMthat’s the only thing that fits. Nobody cares what your credentials are, you are a louthesome loud mouth that doesn’t believe facts matter. Obama got admitted to Columbia by saying he was from Kenya…if not, why won’t he release his college transcripts? That’s some facts we’d all like to see…
kirkill on May 14, 2013 at 3:04 PM
The Ivy League has continued to turn out nothing but salivating inepts, who demand nothing but a premium for their arrogant elitist status over the paltry wages of the ignorant masses.
After going through a half-dozen of those inepts as CEO, our company finally wised-up and put the #2, a non-Ivy Leaguer, in charge.
Funny how well the company has managed, even in these dark times.
Turtle317 on May 14, 2013 at 3:05 PM
Let me clarify this;
Harvard, as with most law schools, ELECTS the President of its Law Review. The choice of President is NOT a meritorious process. That ceased in the 1970s.
Now, if nobrain considers ‘ox gets gored’ to be an ‘old people idiom,’ it quite obviously didn’t attend Harvard Law school when the old procedure was in place. Since it is ‘young,’ it would have attended under the new system where the President is ELECTED. Given the fact that it did not know this tells us that he never attended Harvard.
Resist We Much on May 14, 2013 at 3:06 PM
RWM, you misinterpret me
Becoming President of Law Review is a meritorious process since you need to be on law review to be President, and to get on law review depends on grades and a written test. So you cannot just become president of harvard law review through affirmative action or such as I was arguing against.
logic ain’t your strong suit, is it?
nonpartisan on May 14, 2013 at 3:09 PM
I don’t believe he has a law degree either but IF, and that’s a Big IF, he does have one, it all points to not being able to pass the bar. As in JFK Jr. dumb.
BeachBum on May 14, 2013 at 3:09 PM
The ones who can’t pass their bar/licensing exams.
Lily on May 14, 2013 at 3:11 PM
Yes. And these are the same clowns who seem to not understand the little important parts in the U.S. Constitutions that reads government shall not infringe.
Even a fifth grader understands that concept.
Turtle317 on May 14, 2013 at 3:14 PM
I never took the bar because I had no interest in practicing
nonpartisan on May 14, 2013 at 3:15 PM
It took me literally two seconds to look up the process. Before you attempt to bullsh!t your way through something a little research is advisable. Grades are irrelevant. The only thing anyone needs to do is write a paper. It is an entirely subjective process.
NotCoach on May 14, 2013 at 3:15 PM
@RWM
In other words, you’re the one who isn’t bright enough to get his point, not that he can’t clearly make his case.
How many racist Dems over the years have caught heat for their obvious racism, then said the next day the exact same thing as the troll?
Liam on May 14, 2013 at 3:17 PM
And surely a Harvard Law grad would also know what natural law rights are, but our resident Harvard Law grad did not. He exposed that tidbit of monstrous ignorance in a gun grabbing thread maybe a month ago.
NotCoach on May 14, 2013 at 3:18 PM
Notcoach: actually, Romney has a law degree from Harvard, I think… and has never “used it” per se, as an attorney.
He’s made hundreds of millions with the other half of his degree, the MBA.
Law’s actually a fantastic general degree. Hopefully it teaches you how to think. One of the biggest clues nonpartisan is not an attorney is in fact that she/he cannot think.
But if he or she DID go to law school, I dare him to list the very first case in Civil Procedure; where a court can exert personal jurisdiction over someone if they are in the state.
Vanceone on May 14, 2013 at 3:19 PM
What’s your BS or BA in and where did you get it?
NotCoach on May 14, 2013 at 3:19 PM
Then why did you stay in school at it, and rack up all that student loan debt you were whining about the other day?
Is your real name Niel N. Bobb?
Or is that what you do?
Liam on May 14, 2013 at 3:20 PM
Who spends a minimum of $227,700.00 on law school, and puts up with the bullshit that is part and parcel of going to law school, but isn’t interested in practicing law?
totherightofthem on May 14, 2013 at 3:21 PM
Duly noted, sir! I see I was not on the side of error.
Turtle317 on May 14, 2013 at 3:21 PM
I never took the bar because I had no interest in practicing
nonpartisan on May 14, 2013 at 3:15 PM
Harvard Law and no interest in practicing. Beautiful. Just beautiful.
Having Mother around to help out on the bill is just icing on the cake.
Sound like a trust fund baby to me.
Jabberwock on May 14, 2013 at 3:22 PM
Affirmative action was not the issue.
His election as the ‘First black president of HLR’ did not involve a meritorious process.
Here’s how it works. At the end of 1L, you can enter the LR writing competition. At Harvard, 46 1Ls are invited to join every year. 20 are chosen solely based on their comp scores. 14 are chosen based on comp and grades. The remaining 12 are discretionary slots, which professors and 3Ls fill as they choose. Under Harvard’s policy, affirmative action goals CAN be used to fill the slots even if the invited did not perform well in the comp or have lower grades – I’m not saying this relative to Obama. You brought up AA.
Sooooo, 26% of the slots filled at the end of 1L are done so on a purely discretionary basis.
Finally, the President is ELECTED by the editors (80 when Obama was elected, 88 now).
Resist We Much on May 14, 2013 at 3:34 PM
Considering the pedigree, nonpartisan sure is stupid.
Keep the heat on !
Jabberwock on May 14, 2013 at 3:38 PM
Logic is something you wouldn’t know if it walked up behind you and poked you in the ass. It goes along with honesty with you….
Yes, you have.
Still waiting on those answers about Vidal, Holy Trinity, Reynolds, and Everson.
Resist We Much on May 14, 2013 at 3:41 PM
You just never quit, do you you?
~thumbs up~
Liam on May 14, 2013 at 3:45 PM
your ass? sorry couldn’t resist…
nonpartisan on May 14, 2013 at 3:47 PM
Harvard must have an affirmative action slot for moron.
BeachBum on May 14, 2013 at 3:48 PM
actually, it was the issue. Maybe not directly stated, but the underlying argument was that Obama got all his impressive credentials (Colubmia, Harvard, Law Review) not on his merit (which would prove his intellectual credence) but through affirmative action because of the color of his skin
nonpartisan on May 14, 2013 at 3:48 PM
Feeling a little defensive?
NotCoach on May 14, 2013 at 3:48 PM
He did. Lied his way into Columbia, and was rushed through Harvard. All because of the color of his skin. He is our first affirmative action president. I think it’s high time to abandon affirmative action entirely.
NotCoach on May 14, 2013 at 3:51 PM
How about you go play Switch. Stuff one thumb up your ass and the other in your nose, and wait for someone to yell, “Switch!”
Liam on May 14, 2013 at 3:51 PM
Actually, it wasn’t…your Dowderisation notwithstanding.
READ THE THREAD. YOU BROUGHT UP HIS ‘INTELLIGENCE’ FIRST. YOU WERE THE ONE WHO BROUGHT UP ‘ALL OF HIS IMPRESSIVE CREDENTIALS.’
http://hotair.com/archives/2013/05/01/jay-carney-hey-benghazi-happened-a-long-time-ago/comment-page-1/#comments
Resist We Much on May 14, 2013 at 4:00 PM
LIAR.
Resist We Much on May 14, 2013 at 4:01 PM
Education must be lacking.
dominigan on May 14, 2013 at 4:03 PM
I believe that NP really did attend Harvard Law
n Maintenance Community College.
slickwillie2001 on May 14, 2013 at 4:05 PM
I’ll state it outright, he got into Occidental, Columbia, and Harvard ALL on the basis of affirmative action.
All of his work was graded on the basis of affirmative action.
All of his degrees were awarded on the basis of affirmative action.
That’s the very nature of affirmative action, and anyone that doesn’t understand that is a dumbass. It means his ‘credentials’ aren’t really all that impressive.
slickwillie2001 on May 14, 2013 at 4:09 PM
What that Leftist, baby-killing witch is doing is nothing less than extortion. She should be impeached.
WannabeAnglican on May 14, 2013 at 4:31 PM
Why do most of our trolls seem to be gay?
slickwillie2001 on May 14, 2013 at 4:40 PM
They don’t seem to be gay.
Most gay guys I know have more testosterone than these scumbag punks.
They don’t rate as high as beta on their best days.
cozmo on May 14, 2013 at 4:51 PM
Absent his transcripts, the vacuum can be filled with any old theory that happens by.
Really, there exists NO evidence of his “intellectual credence”
You Harvard folks just assume it. Wrongly as you have proven.
Jabberwock on May 14, 2013 at 4:52 PM
Why did my reply to slickwillie2001 disappear into moderation hell?
NotCoach on May 14, 2013 at 4:54 PM
Why in the hell are any non-governmental organizations being paid to implement law?
BacaDog on May 14, 2013 at 4:55 PM
Because like many churches, they are sucking at the government teet.
Churches are cutting their own throats pimping for the government.
cozmo on May 14, 2013 at 5:00 PM
Because the Dems f*cked up and are now, as EJ says, on the Strugglebus.
Jabberwock on May 14, 2013 at 5:01 PM
nonpartisan looking dimwitted as ever. No way that one even gradiated high screwel. No way.
CW on May 14, 2013 at 6:16 PM
She has to go. Unrepentant recidivist. The definition of partisan hack.
FireBlogger on May 14, 2013 at 6:26 PM
Nasty, vile treasonous wench. May your judgement match your evil heart.
However, in the meantime you can hang around in abortion clinics performing 3rd and 4th trimester abortions and get your jollies. Might even be able to make some shoes or pens out of them.
acyl72 on May 14, 2013 at 6:54 PM
I haven’t seen nonpartisan’s answer yet.
Barnestormer on May 14, 2013 at 7:30 PM
Thanks for the clarification. The Internet Slang Directory was going crazy!
AesopFan on May 14, 2013 at 7:45 PM
I love her expression. It’s always the same and always projects complete contempt for the people.
JellyToast on May 14, 2013 at 10:24 PM
Non sequitur.
Everyone observes the non-relevance by the content of every single one of your posts.
Difficultas_Est_Imperium on May 15, 2013 at 1:11 AM
Sebelius should be impeached. This regime is nothing but a gang of crooks.
They might just ignore you because you’re full of shit.
dogsoldier on May 15, 2013 at 6:12 AM
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