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?

Related Posts:

Breaking on Hot Air



Trackback URL


-¬This administration is just bombarding this country with transformation and my brain and emotions are in overload. Is anyone else feeling this way or do I just need a strong adult beverage????
KickandSwimMom on July 3, 2012 at 5:38 PM

I noted very early on in O’s presidency that it was clear their tactic was to overwhelm us with previously unthinkable acts, that it was going to be impossible to keep up with their machine gun pace. That’s exactly what they’re doing. I can’t think of a single day where they haven’t done something to be furious and fearful about. Sometimes the hits come on an hourly basis. Even if the mainstream media were paying attention, there’s only so much they can report on in-depth (never mind break through to people who aren’t news junkies and hear very little news).

Heck, I know people who didn’t even know about the 6/29 Derecho. To expect them to be informed of Supreme Court decisions, O’s executive orders, fast & furious, Homeland Security’s latest p.c. gambit to run and hide, the greening of the Navy, and so forth, ad nauseam, is too much to hope for.

Romney is very, very weak on judges and his refusal to say anything about the merits of this case, or update his judicial model is an absolute deal breaker for me.
besser tot als rot on July 3, 2012 at 6:09 PM

He did speak about the merits of the case. He said he agreed with the dissent. Are you one of those people who don’t know about the Derecho too?

Why does this feel more and more to me like someone got to Chief Justice Roberts? Did the Dems get some dirt on him they missed or that wasn’t there during his confirmation hearing.
FireDrake on July 3, 2012 at 6:29 PM

I’ve wondered the same thing, about him and others who suddenly did or said bizarre things which were out of character. Those of us who lived through Hillary & Bill’s FBI file scandals may be predisposed to these theories.

Buy Danish on July 3, 2012 at 10:39 PM

Judge Roberts you’re just one busy little bee.
How’s the vacation at the European fortress working out? Has
the Tea Party found you yet?

ncjetsfan on July 3, 2012 at 10:41 PM

But, but, but…he plays three dimensional chess…and, and has green blood…

Gohawgs on July 3, 2012 at 10:56 PM

In the words of Charles Shakleford (Basketball player from NC State) :’ I can score with my right and score with my left – I’m amphibious.’ He too is a toadie.

Fuquay Steve on July 3, 2012 at 11:16 PM

I am so sick of this bozo. I have never truly felt the feelings of hate, in the biblical sense toward another human being. I’ve felt rage, anger, disgust and disappointment, but not hate.

For Roberts, the feeling is pure hatred, what he has done is totally unforgivable, he has made the final installment in the destruction of our constitution and the republic that it established. I truly do not understand how he could not see that he has fundamentally altered the relationship between citizens and government. His decision will turn the health system into the DMV.

AZfederalist on July 3, 2012 at 11:23 PM

It appears that Roberts is also a fan of beach footwear…

Gohawgs on July 4, 2012 at 12:57 AM

The more I look at this affair, the more I get the impression that Roberts just did not WANT to be his position. The whole opinion he wrote, reads like some sort of desperate attempt to punt on the issue without actually conceding anything. Thus, we see all the strange logical contortions in the ruling, that were ultimately so strange that even now minds everywhere are still scratching their heads.

He should’ve just picked a solid side and gotten it over with. Better yet, he should’ve done his job and protected the constitution.

WolvenOne on July 4, 2012 at 1:17 AM


That implies that whatever one sends out on a site like this is a fully informed and unquestionable viewpoint. I consider this stuff more of a conversation.

How sad for you that you don’t.

Happy Nomad on July 3, 2012 at 7:57 PM

Wow, so cereal.

Akzed on July 4, 2012 at 3:18 AM

Ah yes, but Obama is the Marxist architect . . . Roberts is just one of his willing stooges.

rplat on July 4, 2012 at 8:09 AM

If in the course of human events, conservatives ever win control of all three branches of government, their first act should be to impeach Roberts and return him to his liberal friends and benefactors.

rplat on July 4, 2012 at 9:06 AM

If this tax, penalty, health care for all mandate of a bill continues to play out, the HHS sec will be more powerful than the head of the epa. Maybe the lms will start to write that the job is too big for just one person, but by that time we’ll all be broke and begging for food stamps. Happy 4th, everyone.

Kissmygrits on July 4, 2012 at 9:43 AM

The purpose of the Judiciary is not to rubber stamp the Legislative and Executive branches of Government. The purpose is to act as a checks and balance on the other two equal branches of Government.

The question remains, does the individual mandate pass constitutional mustard under the commerce clause as it was sold to the American people. The answer is NO! Case closed, ACA is found unconstitutional as written. CJ Roberts should be impeached!

jjnco73 on July 4, 2012 at 9:46 AM

I am so sick of this bozo. I have never truly felt the feelings of hate, in the biblical sense toward another human being. I’ve felt rage, anger, disgust and disappointment, but not hate.

For Roberts, the feeling is pure hatred, what he has done is totally unforgivable, he has made the final installment in the destruction of our constitution and the republic that it established. I truly do not understand how he could not see that he has fundamentally altered the relationship between citizens and government. His decision will turn the health system into the DMV.

AZfederalist on July 3, 2012 at 11:23 PM

Exactly, now Congress and the President can knowingly LIE to the American people and the Supreme Court has just given the big “OK” to this behavior. This is Tyranny!

jjnco73 on July 4, 2012 at 9:55 AM

Pathological desire to be liked by everyone. O’Reilly fits a similar profile.

FireBlogger on July 5, 2012 at 12:46 AM

Essentially, so what?
Time to move on. The fact is they voted as they voted
ACA was upheld.
You may think Roberts has dropped some mask for y’all here, but in reality what’s been revelaed to him is the hostilty to reason of his former ‘conservative’ supporters.
Maybe Mitt will win and put John Yoo on the court.

verbaluce on July 5, 2012 at 7:43 AM

The more that it is coming out about Roberts the more I am convinced that he was imtimidated by the President who by his remarks prior to the ruling was threatening and then Senator Leahy make similar marks on the Senate floor. It is starting to look more and more than Roberts was more concerned about staying in the good graces of the President and the media than he was about whether Obamacare was Constitutional or not. He has done more damage to the Supreme Court’s integrity for the sake of what people thought of him.

flintstone on July 5, 2012 at 8:33 AM

The Supreme Court decision Annoyed me. But it annoys me more that people are whining over it when there is really nothing you can do, and speculating and trying to guess about Roberts or Blame Bush for it seems like a waste of time, and a further waste of time? Parsing every breath Romney has taken since his speech right after the decision. I am not sure if it is faux conservatives or the real thing but they are saying things like Romney had a hair out of place and is flip flopping again…flip flopping? Romney is not Roberts. Romney said he was disappointed and sided with the Dissent. Now there is video of him saying that the Supremes have declared it a tax, and that it doesn’t matter what we say, that was their conclusion.

I even heard that he should dismiss his campaign team, for sending mixed messages.

I think the mixed message was that a lot of republicans ran to the tv cameras to rant about Obama care as a tax and didn’t like that Mitt was not doing it too. How is that his fault?

It’s time for the republicans to make thier message whatever Romney’s message of the week is and support him. This is a stupid kerfluff over nothing. Obama Care is Obama’s 2700 page fault. It is FULL of new taxes. Romney said he would repeal it all long ago.

Did you forget?

Fleuries on July 5, 2012 at 9:52 AM