Wow, this really is unprecedented. The usually impenetrable Supreme Court seems to have leaked again. Two sources told Jan Crawford that Chief Justice John Roberts did indeed change his vote, now another source is contradicting part of their story and telling Paul Campos that Roberts actually wrote part of both the majority and dissenting opinions.
It’s notable that Crawford’s sources insist on the claim that the joint dissent was authored specifically in response to Roberts’ majority opinion, without any participation from him at any point in the drafting process that created it. It would, after all, be fairly preposterous for the four dissenters to jointly “author” an opinion that was in large part written originally by the author of the majority opinion to which the joint dissenters were now so flamboyantly objecting.
Yet that, I am told by a source within the court with direct knowledge of the drafting process, is exactly what happened. 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 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.
The explanation for this, according to the source, is very simple: Roberts’ chamber did much of the drafting of the former section, and none of the latter. In short, it appears Chief Justice Roberts ended up in large part authoring both the majority opinion and the dissent in National Federation of Independent Business v. Sebelius. This would seem to give a whole new meaning to the term “swing justice.”
I can’t stress enough how unusual this is. It must be causing some serious discord among the members of the court, along with a lot of guessing at the identities of the people leaking and a lot of distrust.
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baal
July 6, 2012 at 12:47 pm (UTC -4) Link to this comment
I can only guess the Roberts is an honest conservative and is having trouble with the willy-nilly flip-floppy reality-denying conservatives (scalia, fox news host and thomas, fox news straight news commentator).
ashleybell
July 6, 2012 at 12:55 pm (UTC -4) Link to this comment
Could it be that someone is trying to undermine the decision by bringing doubt as to Roberts actions? All this info being so conveniently leaked in this particular case?
Randomfactor
July 6, 2012 at 1:09 pm (UTC -4) Link to this comment
I think ashleybell has got it right. But eppur si non muove.
RW Ahrens
July 6, 2012 at 1:12 pm (UTC -4) Link to this comment
The SCOTUS has had such a high approval rating, I think, among most Americans, due to its past lack of such stories of corruption and confusion. This is probably an attempt (which will succeed) to bring the SCOTUS into line with the low opinions we all have of the rest of the government.
This has been a long term tactic of the right wing, to bring the government into such low esteem that when the right wing finally makes its move to replace the current form with a “biblical” form (thus one with some divine imprimatur), most Americans would merely shrug their shoulders and think that “how can this new form be any worse then the old one was”.
How wrong they will be, but this tactic is designed to elicit just such a reaction.
Personally, if that happens, I’ll have to move to Germany.
wayneturner
July 6, 2012 at 1:14 pm (UTC -4) Link to this comment
@baal – Robert’s was the one who, in his confirmation hearings famously promised to adhere to established precedent, and then proceeded to ignore it.
The conservatives are almost always lock-step, and I can’t imagine that they don’t discuss the political impacts of their decisions with party leaders prior to rulings. Some progressives analyze the SCOTUS decision as a victory for the right, not Obama (see this article). I think the court saw this, but knew their base was too stupid to understand the impact of the repeal of the ACA on the future healthcare debate. Roberts won’t be removed from office and probably cares little for the opinions of the base. So I think he joined the “liberal” majority, making certain the insurance companies would continue to be saved from universal healthcare, and let the “dissenters” attack him viciously to satisfy the need of the conservative base for revenge. My mental image is of Scalia, Roberts, Alito, Thomas, and Kennedy drinking a scotch at the Federalist Society bar and laughing at the Tea Party and progressive, while being massaged by conservative coeds provided by the health insurance lobby.
Ryan Jean
July 6, 2012 at 1:31 pm (UTC -4) Link to this comment
@Randomfactor – “But eppur si non muove.”
We shall see, for there is a strong block trying to undo almost every positive thing to happen in this nation since the Revolution, and the very court that narrowly upheld this law has actively helped chip away more of America’s past progresses than I really want to think about.
@wayneturner – “…in his confirmation hearings famously promised to adhere to established precedent, and then proceeded to ignore it.”
I’ve seen this said about more than a few justices, not merely Roberts. Conservative justices may more often reason from the conclusion working back than do their liberal counterparts, but both of them tend to employ any reasoning necessary when they don’t much like the precedent, and pretty much all of them claim to hold that precedent in reverence prior to their appointment.
baal
July 6, 2012 at 1:42 pm (UTC -4) Link to this comment
@ wayneturner
I agree with you and said something similar on this blog early in the week. I used “honest conservative” and it gives the wrong impression of what I meant. I think Roberts is thinking more strategically (more goal oriented less Rah-Rah Right) than the other four.
eric
July 6, 2012 at 1:47 pm (UTC -4) Link to this comment
Would this really be that surprising?
IANAL but it would seem to me perfectly reasonable for a SCOTUS judge to have his/her clerks write up what they (that judge) sees as the best arguments for both sides, almost as a matter of course. And it would also seem reasonable to me for the Judges to float around drafts of what they are thinking to each other, and that they use each other’s material when drafting opinions. Just the same way lower judges may use a prosecuting or defense attorney’s submitted written material when drafting up their opinion.
The flip is unusual, sure. The leak is unusual too. And I admit I’m not familiar with the inner workings of the court. But given the flip, it wouldn’t surprise me at all to learn that some arguments drafted by Roberts made it into the dissenting opinion.
d cwilson
July 6, 2012 at 1:47 pm (UTC -4) Link to this comment
Maybe Scalia and Thomas are so disgusted by this turn of events that they’re planning to retire soon.
One can only hope.
dingojack
July 6, 2012 at 1:52 pm (UTC -4) Link to this comment
My sauce* swears that Roberts stripped down to his underpants, greased himself up with a 50/50 mixture of olive oil and shoe polish before squeezing into a pink tulle tutu and tap dancing to accompany his falsetto warbling of ‘The Good Ship Lollipop’.
True Story!
@@
Dingo
—-
* tomato
Azkyroth, Former Growing Toaster Oven
July 6, 2012 at 3:37 pm (UTC -4) Link to this comment
It’s a lot more likely that Thomas will throw Scalia down a reactor shaft.
dingojack
July 6, 2012 at 3:49 pm (UTC -4) Link to this comment
Noooooo! That’ll mean we’ll get ‘Darth Scalia’ claiming that Alito is his son…
:) Dingo
satanaugustine
July 6, 2012 at 3:56 pm (UTC -4) Link to this comment
I await some seriously extraordinary evidence to back up the claims of these “sources.”
..and dingojack @ 10: Awesome comment! And I believe you.
pacal
July 6, 2012 at 5:27 pm (UTC -4) Link to this comment
Roberts wrote parts of the dissenting and the majority opinion?! Aside from whether or not if it is legal. I can sort of see it happening if a Justice during arguements started writing one opinion and then changed his/her mind and wrote another and because he/she circulated ccopies of the former draft opinion parts of it were incorperated into the dissent.
Even if that is what happened that is not the implication of this leak, which seems to be designed to destroy Roberts credibility.
Jafafa Hots
July 6, 2012 at 6:03 pm (UTC -4) Link to this comment
Wait, are you saying that Scalia and Thomas would crib rather than writing their own stuff?
That’s just too close-fetched.
llewelly
July 6, 2012 at 10:16 pm (UTC -4) Link to this comment
I admit I can’t put my finger on why , exactly, but two leaks so close together from a court so long known for having few leaks … this rings my bullshit meter hard.
Either both of these leaks are BS, or one of them is 50% BS, and 50% reinterpretation of the other.