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Did Roberts Change Sides in Mandate Case?

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.

Comments

  1. Michael Heath says

    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.

    There is a compelling evidence that CJ Roberts switched sides, but not that he switched so late in the game the dissent was off to some publisher who couldn’t stop the presses. Isn’t the majority opinion written by Roberts? Seems to me that J. Scalia purposefully failed to update the dissent to reconcile with the majority opinion.

  2. says

    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.

    If that’s the case, it’s an extremely unprofessional and even childish thing to do. It’s starting to sound like a(nother) childish refusal by the anti-Obama faction to accept that they’re not the majority.

  3. Michael Heath says

    Raging Bee writes:

    If that’s the case, it’s an extremely unprofessional and even childish thing to do. It’s starting to sound like a(nother) childish refusal by the anti-Obama faction to accept that they’re not the majority.

    My immediate reaction was that Scalia was once again acting like a spoiled infant. I also find this attribute the contemporaneous American conservative movement, in fact I’ll go one step further and argue they’re infantile nihilists. A conclusion many people started making in the summer of 2008.

  4. slc1 says

    Re Ed Brayton

    It is my information that Justice Kennedy was persuaded to change his vote on the Roe vs Wade based case by Sandra Day O’Connor. Apparently, former Justice O’Connor, who was truly a swing justice, had a strong influence on him. I always find it interesting that the anti-abortion folks like to lambaste former Justice Harry Blackmun, author of the Roe vs Wade decision, when they should be lambasting former Justice O’Connor who really saved the decision.

  5. says

    Another question that arises here is, why did Roberts change his vote so late in the process? This was after all the deliberations and arguments, so I’m guessing his mind wasn’t changed by arguments. Could it be that Roberts heard the other Obamaphobes congratulating themselves, and looking forward to using this decision as a precedent for more attacks on progressive policies? Could it be that Roberts got close enough to the right-wing insanity to see something he hadn’t seen before agreeing with it first?

  6. baal says

    /cheer bee and M. Heath @4.

    I’m very pleased to see EJ Dione and other (even inside the beltway types!) think Scalia has really crossed the line and that he needs to leave the bench.

  7. slc1 says

    Re baal @ #9

    Ah, Dionne is one of those bleeding heart liberals. Since there is zero chance that scumbag Scalia will be impeached, I would bet that he will leave the bench feet first.

  8. says

    slc wrote:

    It is my information that Justice Kennedy was persuaded to change his vote on the Roe vs Wade based case by Sandra Day O’Connor. Apparently, former Justice O’Connor, who was truly a swing justice, had a strong influence on him. I always find it interesting that the anti-abortion folks like to lambaste former Justice Harry Blackmun, author of the Roe vs Wade decision, when they should be lambasting former Justice O’Connor who really saved the decision.

    Yes, it was O’Connor and Souter who persuaded him.

  9. d cwilson says

    It is my information that Justice Kennedy was persuaded to change his vote on the Roe vs Wade based case by Sandra Day O’Connor. Apparently, former Justice O’Connor, who was truly a swing justice, had a strong influence on him.

    That would explain his steady rightward tilt since O’Connor’s retirement.

  10. karlvonmox says

    Universal health care is inevitable and Roberts knew it. He didnt want to be seen as another Roger Taney, who ruled in the Dred Scott case that slaves are private property and that if one runs away he/she must be returned to the “rightful owner”. He was concerned for legacy among future generations, and I guess didnt think the Roberts court should known as one that was entirely regressive.

  11. slc1 says

    Re D Cwilson @ #14

    Agreed, former Justice O’Connor is much missed. As I understand it, she retired because her husband was ill.

  12. Dennis N says

    I very much doubt he changed his mind at the last minute. It takes more than an all-nighter to write a 59-page majority ruling.

  13. oranje says

    Well, at least we’ll get the entertainment of Beck going nuts about this for a bit longer. Will this be spun as a conspiracy?

    I need to do some research into how many times the phrase “judicial activism” has been applied in the last two days. Because it’s activism when the Court doesn’t do what you want it to do.

  14. timberwoof says

    The original form of the saying was attributed in my grammar school to Benjamin Franklin. “A switch in time” is thus a pun.

    I was trying to figure a way to make a faux-clutching-at-pearls jest about how the error in the dissenting opinion shows that the conservatives in the Court aren’t actually divinely inspired infallible prophets, but nobody says that anyway—especially not now.

    In a few weeks, we’ll have to ask the conservatards how the weather and the health care is in Canada.

  15. says

    I like to imagine, in my less misanthropic moments, that Roberts’ shame and guilt over helping unleash the Citizen’s United virus upon the country caused him to decide in favor of the ACA as a way of seeking some sort of karmic balance.

    But more likely the fucker just got confused about what he was doing. It’s been a busy week for him.

  16. Midnight Rambler says

    Another question that arises here is, why did Roberts change his vote so late in the process? This was after all the deliberations and arguments, so I’m guessing his mind wasn’t changed by arguments.

    The thing is, as Talking Points Memo noted at the time, Roberts sounded like he thought it was constitutional as a tax during the arguments. That makes it even stranger if he switched late, though it seems like there’s good evidence for it. It makes me wonder if he was stringing along Scalia most of the time knowing he was going to switch.

  17. operkins says

    It is intriguing, but it may be much ado about nothing.

    At least in part, the Ginsburg Opinion reads as a dissent. Look at phrases like “should survive measurement under the Commerce and Necessary and Proper Clauses.” on page 77 of the slip opinion.

    I’m no expert, but to me that sounds like dissent language. There are other examples. So, calling it the Ginsburg dissent may not import any huge hidden meaning.

  18. DexX says

    Urm, “a stitch in time saves nine”, formerly “a stitch in time may same nine”, are from the 18th and 17th centuries respectively. They teach that performing a small amount of work now may save you from needing to do a lot more work later (literally, if a seam in an item of clothing is coming open, one stitch now may save you from a lot more stitching later).

    Nothing at all to do with the US judicial system, sorry.

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