General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsSalon: Roberts wrote both Obamacare opinions
In response, according to Crawfords story, the four conservatives then independently crafted a highly unusual joint dissent. If so, this would represent a powerful symbolic gesture: Joint Supreme Court opinions are rare. Normally a justice authors an individual opinion, which other justices may choose to join. Jointly authored opinions are reserved for momentous statements of principle, such as in Cooper v. Aaron, when all nine justices jointly authored an opinion declaring that the courts anti-segregation decisions were binding on state governments that disagreed with the courts constitutional interpretations.
SNIP
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 Crawfords sources that the fact that the joint dissent doesnt 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 courts 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.
Wow. I don't know what to make of this. We were so close to seeing the entire health care reform law struck down that John Roberts wrote 3/4 of what became the dissent. Thoughts?
unblock
(52,384 posts)it only became the dissent after he switched sides and the remaining 4 right-wingers decided to use his draft as their own.
NYC_SKP
(68,644 posts)Or maybe something deep inside Roberts spoke to him.
Something less present in the other four.
1StrongBlackMan
(31,849 posts)Roberts just got tired of fat tony's bullying ways.
elleng
(131,196 posts)and I can easily believe it. Happens fairly frequently that, while drafting something, my view of the logic of one issue or the other changes.
Glad it happend to Justice Roberts but not surprised. Surprised that this internal info has leaked, but I understand that the story can be discerned by reading portions of the decision and dissent.
1StrongBlackMan
(31,849 posts)Roberts "Roberts voted with the rest of the courts conservatives to strike down the individual mandate, but in the course of drafting his opinion changed his mind, and ended up siding with the courts four liberals to uphold almost all of the law."
My other thought is:
Keep reporting Ms. Crawford and you will soon out your source ... If not to the public, then to the other sitting Justices. I suspect that whomever her source is would far rather the Justices not know that he/she is talking.
elleng
(131,196 posts)but I suspect SC employees have a good idea who did it, AND whomever it was gets his/her a** kicked.
1StrongBlackMan
(31,849 posts)And my guess is her source is one, A. Scalia ... or is that just wishful thinking.
rocktivity
(44,580 posts)and there's a very good chance that the leakers are the conservative judges themselves.
rocktivity
cthulu2016
(10,960 posts)Which matters to some.
rocktivity
(44,580 posts)If that's the case, he NEVER changed his mind -- he just found a way to define the mandate as a tax and upheld the rest of ACA with the liberal judges.
It makes more sense that when the conservative justices could not persuade Roberts to join them in striking down ACA in its entirely, they launched the media leak campaign. Keep in mind that the "sources" in this story still have an axe to grind against Roberts.
rocktivity
cthulu2016
(10,960 posts)Conference. They vote. 5 say the mandate is unconstitutional use of Commerce Clause. 4 say it is valid under Commerce Clause.
Roberts assigns himself the decision. Writes decision about the failure under Commerce Clause, with the other 4 RWers joining in the opinion. Ginsberg writes stinging dissent.
Over time Roberts comes to think the tax argument is valid. Other 4 RWers now have the majority decision nixing Commerce Clause, which is no longer majority, so they have to rework it as a dissent.
Roberts writes the "okay as a tax" decision. Now Ginsberg's dissent is reworked as a concurring opinion that disagrees with the main decision about the Commerce Clause but agrees with the ultimate conclusion.
So in that scenario Roberts would have written the bulk of the dissent as well as the majority opinion.
There's nothing shady about it, or to Robert's discredit.
And he would have argued against the use of the commerce clause in both decisions.
Meanwhile, the liberals who joined Ginsberg's dissent now join her concurring opinion that it is okay under the Commerce Clause.
Kalidurga
(14,177 posts)so it's still a bit baffling. I thought after Citizens United that Roberts would never be able to claim to be a thinking person... But, seriously I have changed my mind on a number of things once I have done the research to write a paper. Once you start following an idea you don't always have complete control of where the logic takes you.
loyalsister
(13,390 posts)I am inclined to believe that it is possible that he is doing his job. Listening and deciding without partisan influence. I don't see the point in trying to assess motives. He did the right thing- 'nuff said.
FarCenter
(19,429 posts)Amid growing fallout over his surprise healthcare vote, Chief Supreme Court Justice John Roberts has fled the country amid growing fallout over his surprise vote in last week's landmark healthcare ruling.
Associated Press photographer Lino Arrigo Azzopardi found the embattled justice in the Mediterranean island nation Malta, where he will be teaching a class (and hiding out from his new conservative adversaries) for the next two weeks.
Read more: http://www.businessinsider.com/chief-justice-john-roberts-malta-photo-2012-7
nadinbrzezinski
(154,021 posts)not that a justice changes sides at the last minute.
dkf
(37,305 posts)And how we are overestimating coverage because Roberts basically allowed the states to choose if they wanted to expand Medicaid.
cthulu2016
(10,960 posts)GeorgeGist
(25,324 posts)But letting your brains fall out isn't one of them.