Paul Campos, a law professor at UC-Boulder, notes that the dissenting opinion in the health care reform ruling strongly suggests that Chief Justice John Roberts may have switched sides, originally voting to overturn the mandate and then switched and decided to uphold it.
It is impossible for a lawyer to read even the first few pages of the dissent without coming away with the impression that this is a majority opinion that at the last moment lost its fifth vote. Its structure and tone are those of a winning coalition, not that of the losing side in the most controversial Supreme Court case in many years. But when we get to Page 13, far more conclusive evidence appears: No less than 15 times in the space of the next few pages, the dissent refers to Ruth Bader Ginsburg’s concurring opinion as “Justice Ginsburg’s dissent.”
There is one likely explanation for this: The dissent was the majority opinion when those who voted to overturn the entire ACA signed off on sending their text to the printer. In other words, Chief Justice Roberts changed his vote at the very last possible moment.
It is inconceivable that the dissent reads as it does by inadvertence. We can be sure every word of it was proofread countless times by the dissenters’ 16 clerks, all of whom know how to make a global change on a word processing program.
Another unavoidable conclusion seems to be that the dissenters intentionally left the parts of their text referring to Ginsburg’s “dissent” unchanged. This was a symbolic gesture, intended to reveal, without formally breaking the justices’ code of silence, what the Chief Justice did to them — and, as they no doubt see it, to the country and the Constitution — through his last-moment reversal.
This is very intriguing. And it’s happened before, most famously when Justice Owen Roberts changed his vote in a case involving FDR’s New Deal programs in 1937, which is where we get the phrase “a switch in time saved nine.” But it also happened in 1992, when Justice Kennedy initially agreed to overturn Roe v Wade and was assigned to write the majority opinion, then changed his mind and wrote the majority opinion to uphold its central finding instead (while allowing more limitations than the court had previously).
How do we know that? Because it was in the Harry Blackmun’s papers that were donated to a library and made public five years after his death. That’s about the only way we ever know what goes on behind the scenes at the Supreme Court, from those papers that show internal communications and deliberations many years later after one of the justices has died. So we may now know for sure if this is the case for another decade or more, but it’s a very interesting possibility.