Home / General / On Roberts’ majority opinion becoming the joint dissent

On Roberts’ majority opinion becoming the joint dissent


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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  • Scott Lemieux

    My first thought is to speculate that Roberts cooked up the idea of a joint opinion primarily assigned to Kennedy (using the old “lock in the shakiest member” trick), and then was scared off when Kennedy wrote a maximalist, Thomas style opinion he didn’t expect.

    • But that would still entail Roberts originally voting with the four dissenters to strike the law in its entirety, no?

    • professor darkheart

      I don’t think Kennedy wrote the maximalist parts of the dissent; they’re hyperbolic, dismissive of counterarguments, and pure Scalia. But the commerce clause section of the dissent is bland and measured, and could well be Kennedy.

      I speculate that Roberts was working with the conservatives to craft a five-justice majority that would strike down the mandate but leave much of the rest of the ACA intact, probably including his compromise on Medicaid expansion, and that he assigned the opinion to Kennedy for the “shakiest member” reason mentioned above. Kennedy drafted the commerce clause section of the prospective opinion, but ultimately Scalia and Alito and Thomas (or some combo thereof) proved unwilling to join an opinion that compromised on Medicaid (and indeed, Roberts’s invention of a new policy in his eventual opinion is arguably more constitutionally dubious than the law ever was; I can see how the conservatives would bridle at it on both ideological and legal grounds).

      So Roberts switched sides rather than join a majority in an extremist stance that would have been a disaster for the court’s reputation. He talked himself into the “tax” definition of the mandate as a way in which he could in good conscience join a majority upholding it, and had little trouble persuading the liberal bloc to go along with the limitations on federal spending power in return. Kennedy, in the meantime, annoyed by losing his chance to write a historic majority opinion, could have chosen to join Roberts in a 6-3 decision that he had little role in shaping, or to stick with the conservative minority, which would at least allow him to nurture his reputation as an “independent” thinker and give him a co-author credit on the dissent, though Scalia would never have foregone the chance to make the minority’s more extreme arguments himself.

      That’s why Roberts’s opinion and the dissent feature duplicate objections to the mandate on commerce clause grounds; Roberts had to recreate that argument when he deserted the conservative bloc, and Kennedy was too attached to what he’d already written to strike it, despite the fact that there’s no reason for the dissent to rehash an argument that’s already part of the controlling opinion. Meanwhile, the dissent that Ginsburg had been writing turned into a concurrence.

      If the outcome of the case represents Roberts trying to be “statesmanlike” in order to protect the reputation of the court, wouldn’t he have first tried to be “statesmanlike” in a way that produced a credible conservative majority opinion?

      • Scott Lemieux

        Quibble: in big cases like this, Kennedy is not bland and reasonable. He’s grandiloquent. I’d bet Kennedy made substantial contributions to those passages.

      • chris

        and indeed, Roberts’s invention of a new policy in his eventual opinion is arguably more constitutionally dubious than the law ever was

        And unintentionally funny, too. I liked when he compared federal money-with-strings-attached to a contract. The two most important contracts I’m party to are my employment and my lease.

        In neither case do I have the unilateral right to continue the contract on its current terms once its term expires (and for the employment contract, it expires whenever *either* party damn well says it does, to boot). I can either accept whatever revised terms the other party chooses to offer, or cancel the whole deal and look elsewhere at considerable cost.

        Luckily for the states, under Roberts’s opinion their relationship with the federal government is not much at all like these contracts.

        • H-Bob

          Yeah, why should the states be protected against contracts of adhesion ?

        • John

          Well, some leases do automatically renew under the old terms, don’t they?

          • Anonymous

            Only when there’s a statutory scheme in place that says they do.

          • (the other) Davis

            Usually after a lease expires you end up with a periodic tenancy — typically month-to-month, though this can vary depending on what the terms of the original lease were. Offhand, I don’t know of any jurisdictions that reinstate the original lease.

        • Anonymous

          Based on Roberts’ opinion, it would appear the states are sovereign but the federal government is not.

  • More evidence from VC and Balkinization

  • etv13

    No doubt you’re right, but it seems really bizarre to me that nobody caught and corrected these vestiges. Don’t they have word-processing software at the Court? Is there some anti-revision rule?

    • Bill Murray

      Is there some anti-revision rule?

      Isn’t this Scalia’s interpretation of the Constitution?

    • Paul Campos

      I think this points to two things:

      (1) Roberts’ switch was very late in the process — as in a possible explanation for why the final day of the term got pushed from Monday to Thursday.

      (2) The dissenters were in no mood to cover Roberts’ tracks.

      • Richard

        So Roberts wrote a fifty page opinion between Monday and Thursday.

        And was there even an indication that the opinion would be issued on Monday? I dont remember hearing anything other than that all undecided cases would be decided this week. Is the usual practice to issue all undecided cases on the last Monday before the end of the term?

        • Paul Campos

          The original schedule called for the last cases to be announced on Monday. This sometimes gets pushed back so it’s far from conclusive evidence by itself of a late Roberts switch, but it’s another piece of the puzzle.

          BTW the clerks (each justice has four) write the opinions.

          FWIW I’ve heard from two pretty good off the record sources that Roberts switched his vote quite late. Whether that means at the end of May or the beginning of this week I don’t know.

          • Superking

            This remains speculation, though. Look the quote you pulled from Ginsburg”s opinion references the Chief Justice’s opinion. So, we have to assume then, that the conservative dissent was actually written by Roberts himself until he switched. Do we habpve any real evidence that indicates Scalia or Kennedy would actually write an opinion under the CJ’s name?

            • Paul Campos

              As Scott argues what’s now the joint dissent may have been assigned by Roberts to someone else, most likely Kennedy. So Ginsburg’s dissent was addressed to that. It would have been a simple matter for Ginsburg’s clerks to change references to “the Court” in what had been a straight dissent to references to “the Chief Justice” in the parts of her opinion that dissented from parts of Roberts’ opinion.

              • professor darkheart

                Right, and furthermore, that would help to explain why her concurrence barely even mentions the dissenters’ take on Medicaid expansion. (At the end of the introduction (40) and the conclusion (60) of the Medicaid section of her concurrence, Ginsburg approves of Roberts’s restraint in his proposed remedy for the finding of a coercive federal role, in contrast to the dissenters. This is where my students paste in their new thoughts on the text at hand when they’re too lazy or have procrastinated too long to revise an essay properly.) Of course a concurrence is going to focus primarily on points of disagreement with the controlling opinion, but I would still have expected a little more attention to the dissenters’ analysis, since it’s so outrageous.

                But if the Roberts hedge on Medicaid was intended to be part of the conservative majority opinion, then perhaps the dissent on this point wasn’t written until it was too late for Ginsburg to respond substantively, and/or it was originally written as a single justice’s concurrence with that majority opinion and thus no one took it too seriously.

    • Richard

      Thats why the theory doesn’t make sense. To believe it, you have to believe that a law clerk or secretary was given instructions to change “dissent” to “concurrence”, that they somehow forgot to do that and that all four justices and their respective eight law clerks never caught it.

      • Or, say, Scalia decided to make it obvious to embarrass Roberts and make him persona non grata with the conservative movement.

        • Richard

          And Kennedy agreed with that. I don’t think that’s likely. That has not been Kennedy’s modes operandi on the Court. All four justices would have to be part of this

        • Furious Jorge

          In a case of this magnitude, it wouldn’t surprise me in the least. Especially on a court with assholes like Scalia, Thomas and Alito.

  • Richard

    But in the first reference to the Ginsburg opinion, the dissent makes clear that they are talking about Ginsburg disagreeing with the view that the mandate is not authorized by the Commerce Clause:

    “A few respectful responses to JUSTICE GINSBURG’s dissent on the issue of the Mandate are in order.”

    So it seems like they put in specific language making clear that the Ginsburg opinion is only a partial dissent but you claim that they then forgot to change the subsequent references to “dissent” to ” concurrence”. It seems much more likely to me than rather than a drafting error (change “dissent” to “concurrence” – whoops, the law clerk forgot and none of the four of us caught it), the dissenting four referred to the Ginsburg opinion as a dissent to emphasize the fact that her view on the Commerce Clause did not gain five votes.

    • Joe

      “A few respectful responses”

      That seemed a bit strange for two reasons. The tone sounds like something a majority (or wannabe majority, perhaps) would say & I’m not sure who wrote it. Seems to polite for half of them, Kennedy rarely finds it necessary to address the dissent … I guess Alito might have wrote that portion.

  • Superking

    Why would Roberts assign the majority opinion to someone other than himself? The evidence presented here suggests that Roberts actually wrote the “majority” that became the dissent. Ginsburg is referring to the CJ’s opinion. It seems that we have to assume that Roberts wrote pat and then repudiated it for any of this to be true. I remain unconvinced.

    • professor darkheart

      Why would Roberts assign the majority opinion to someone other than himself?

      Because writing it himself would have reinforced the “Roberts is just a partisan hack” narrative that he’s so desperately trying to get out from under. Assigning the majority opinion to the most “moderate” conservative justice makes it look more like a “moderate” opinion.

    • Scott Lemieux

      It may have also been intended as a joint opinion all along — as I’ve said, I think this is among the strongest evidence that the dissent was originally the majority — in which case it could be written by anybody. Cooper v. Aaron was primarily written by Brennan, not Warren, and Casey was divvied up among the three in the plurality (as, I think, was Gregg.)

  • joe from Lowell

    I don’t understand what the “we” language is supposed to demonstrate.

    • pseudonymous in nc

      The joint dissent uses “we” to imply that it’s being invoked in a passage where Ginsburg specifically refers to ‘The Chief Justice’. On a strictly textual basis, it’s answering a question that is not asked of it in the final draft, exposing a possible layer of exchange in an earlier one.

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  • John

    This Frum piece seems like a plausible version of what may have happened.

    • Richard

      Interesting. This feels more right to me than the other scenarios. Especially Roberts being repulsed by the dissents reliance on Reid’s comment to a reporter after the bill was passed

  • rea

    My recollection is that Roberts asked some very pointed questions at oral argument on the theme of whether the mandate was really a tax. That makes me skeptical of these text-based theories about last minute changes. (I’m not a textualist–I believe in looking for evidence of the drafter’s intent . . .)

    • Richard

      That too. Roberts asked why this was a mandate if it didn’t force anybody to do anything. So at the very least he was questioning the conventional wisdom from the get go

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  • Anonymous

    I think the evidence of a late switch is pretty compelling, but there’s one thing I can’t make sense of. The theory is that there was originally an opinion of the Court (what is now the conservative dissent) and a Ginsburg dissent (now a partial concurrence). Then at a late stage we get a new Roberts opinion. Now, clearly this Roberts opinion circulated far enough in advance for Ginsburg (and clerks) to extensively revise her opinion–as far as I can see it doesn’t exhibit the confusion of the conservative dissent (though I’m prepared to believe I missed something). If that’s right, there should have been plenty of time for the comparatively easy task of tuning up the conservative dissent.

    I wonder if it’s not so much a case of the conservatives simply wanting to expose Roberts switch as it is a bad-faith tactic to imply that there was a genuine commerce clause holding, against which the Ginsburg opinion should be regarded as a dissent.

    • Ken

      Maybe the “confusion of the conservative dissent” is greater because it’s based on an argument that some blogger made up two years ago, instead of established legal precedent?

  • Dave

    I suppose asking them is out of the question?

    • At this point, good luck finding them. But Breyer is due to be robbed some time in August (the last one was in May, the one before in February); check the police reports.

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