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[quote=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.  
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