General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsDid Roberts switch his vote?
Scalias dissent, at least on first quick perusal, reads like it was originally written as a majority opinion http://lsolum.typepad.com/legaltheory/2012/06/evidence-that-the-votes-shifted-after-conference-initial-vote-to-declare-mandate-unconstitutional.html (in particular, he consistently refers to Justice Ginsburgs opinion as The Dissent). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill.
http://www.volokh.com/2012/06/28/was-scalias-dissent-originally-a-majority-opinion/
Kber
(5,043 posts)Roberts vote wasn't necessary to put it over the top - only to make it look less controversial.
onenote
(42,778 posts)Despite the fact that some here at DU swore up and down that the case was decided in the first conference vote conducted after the oral argument, the reality is that hammering out a majority in a case like this is often a process that evolves over time). I have no way of knowing whether that is what went on here. I do know that the fact that Scalia refers to Ginsburg's opinion as the "dissent" isn't a giveaway at all. The portion of Ginsburg's opinion that he is referring to IS a dissent -- a dissent on the issue of whether the individual mandate should be upheld under the Commerce Clause. Ginsburg's opinion concurred in the judgment, and concurred and dissented in part from Roberts' opinion.
FarCenter
(19,429 posts)Presidents come and go.
The Chief Justice has tenure for life.
The Senate hangs on forever, and it approves new justices.