Explanation of the opinions and leaks in the ACA case.

[Anonymous]

I don't have a blog, so DCUM is the next best place to post this:

The best explanation of the ACA decisions is that John Roberts initially voted to strike down the mandate with Kennedy, Scalia, Alito, & Thomas, and started writing an opinion on that part, including a rejection of the government's alternative theory that the mandate could be upheld as a tax. That initial opinion was circulated and eventually published as the dissent of Scalia, Kennedy, Thomas, and Alito.

The evidence that the joint dissent was originally written as a majority is overwhelming and has been discussed elsewhere, but a few examples include page 14, where it refers to Justice Ginsburg's dissent as making a claim about what "we" do, when in fact Justice Ginsburg is making a claim about what the Chief Justice's opinion does. Another example is the discussion of the taxing power. Rather than engage with the Chief's opinion (like every dissent written since the beginning of time), the "dissent" discusses and rejects the government's arguments, as if the Chief's opinion doesn't even exist. In addition, the dissent has a lengthy discussion of the medicaid expansion, which was already rejected by the majority.

Given that the dissent was once the majority, the question is why didn't they write their own dissent, or spend the two hours editing it would have required to convert the former majority opinion into a regular dissent. The answer is that they wanted to call out the Chief for changing his vote, and show the world "what would have been" if he hadn't done so. They knew that their dissent -- and the odd way it's written -- would raise exactly the kind of questions that have been asked. Ordinarily I would say that's far too petty a motivation to put on the Justices without other evidence. But it turns out we do have other evidence. At least two or three sources inside the Court have leaked details of the opinion writing and about Roberts having changed his vote.

[Anonymous]

I think the points OP makes are convincing.

But on the question of why he changed, I find it quite conceivable that he slowly came to the conclusion that although the Commerce Clause did not justify the mandate, the tax interpretation did, and so he had to accept the decision of Congress.

I see no reason to accuse him of bowing to political pressure, when he was getting plenty of pressure from his own constituency to vote the other way.

[Anonymous]

I agree PP. I think it's very unlikely anyone was applying behind the scenes pressure, or that Roberts would cave to it if they did. I think he may have thought that between severing the mandate and leaving a mess and upholding it under the tax power, the latter was the lesser of two evils.

[Anonymous]

What's the big deal? A justice should be willing to change his opinion. It proves that he is being thoughtful, and not merely seeking the outcome he desires politically.

[Anonymous]

Anonymous wrote:I agree PP. I think it's very unlikely anyone was applying behind the scenes pressure, or that Roberts would cave to it if they did. I think he may have thought that between severing the mandate and leaving a mess and upholding it under the tax power, the latter was the lesser of two evils.

How can you say this? In his opinion, he explicitly states that the outcome of bad policy is not the court's problem.