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On Roberts’ majority opinion becoming the joint dissent

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I suggested yesterday that the tone and structure of the joint dissent, and especially the strange semantic treatment of Ginsburg’s opinion — referred to several times by the joint dissent as “the dissent,” which is a locution that only makes sense in the context of a majority opinion discussing a single dissent — provided strong evidence that the joint dissent was actually the opinion of the Court until very late in the decision process.

In fact the opinions in the case are full of evidence that this is precisely what happened. Here is a passage from p. 35 of Ginsburg’s opinion, criticizing Roberts’ opinion:

In failing to explain why the individual mandate threatens our constitutional order, THE CHIEF JUSTICE disserves future courts. How is a judge to decide, when ruling onthe constitutionality of a federal statute, whether Congress employed an “independent power,” ante, at 28, or merely a “derivative” one, ante, at 29. Whether the powerused is “substantive,” ante, at 30, or just “incidental,” ante, at 29? The instruction THE CHIEF JUSTICE, in effect, provides lower courts: You will know it when you see it.

This passage is discussed in the joint dissent (p.15):

The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so.

(emphasis added)

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