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Was Scalia’s Dissent Originally a Majority Opinion?
The Volokh Conspiracy ^ | June 28, 2012 | David Bernstein

Posted on 06/28/2012 10:07:16 AM PDT by Dan Nunn

Scalia’s 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 Ginsburg’s 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.


TOPICS: Constitution/Conservatism; News/Current Events
KEYWORDS: obamacare; scalia; scotus
Interesting analysis. I wonder what kind of pressure Roberts was under, and from whom.
1 posted on 06/28/2012 10:07:22 AM PDT by Dan Nunn
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To: Dan Nunn

Now, we may know why there was a public bashing of the court and Roberts the past couple months. It wasn’t in anticipation of the election, but to pressure Roberts. It is more clear than ever that Kagan spoke about the internal wrangling and knew Roberts could be swayed.


2 posted on 06/28/2012 10:16:05 AM PDT by ilgipper ( November cannot come soon enough)
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To: Dan Nunn
I wonder what kind of pressure Roberts was under, and from whom.

If he did indeed cave to the pressure, it certainly didn't come from his spine.

3 posted on 06/28/2012 10:17:43 AM PDT by A.A. Cunningham (Barry Soetoro is a Kenyan communist)
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To: Dan Nunn
I really believe that is what happened. Obama threatened Judge Roberts and he folded. Maybe there's something about The judge that we don't know. Just Saying??
4 posted on 06/28/2012 10:21:06 AM PDT by NativeTxn
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To: Dan Nunn

Roberts rewrote the statute, it is the worst kind of judicial activism. Shameful behavior.


5 posted on 06/28/2012 10:21:29 AM PDT by jwalsh07 (.)
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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. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government.
6 posted on 06/28/2012 10:22:26 AM PDT by A.A. Cunningham (Barry Soetoro is a Kenyan communist)
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To: Dan Nunn

I don’t care what pressure Roberts was under. He’s a traitor. The signer’s of the Declaration fo Independence were under pressure too, but they still risked there lives and sacred honor for their country.


7 posted on 06/28/2012 10:25:36 AM PDT by Bizhvywt
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To: Dan Nunn

Oh great...Roberts is revealed by such a scenario as the weakest link in the SCOTUS, someone who can be threatened by America’s enemies into caving to the Left. That is a tragic situation.


8 posted on 06/28/2012 10:26:09 AM PDT by txrefugee
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To: ilgipper

What kind of pressure do you think a Supreme Court justice faces? He has a lifetime appointment, no worries about reelection. He has no worries about being overruled by a higher court.


9 posted on 06/28/2012 10:28:15 AM PDT by P3 Orion
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To: P3 Orion

Chicago mob-style threats.obama will do anything.


10 posted on 06/28/2012 10:31:33 AM PDT by hoosierham (Freedom isn't free)
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To: A.A. Cunningham

Most people in our country would give life and limb for our country. It is evident that that the so called leaders are cowards to the nth degree.


11 posted on 06/28/2012 10:34:22 AM PDT by freekitty (Give me back my conservative vote; then find me a real conservative to vote for)
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To: Dan Nunn

“I wonder what kind of pressure Roberts was under, and from whom.”

That’s what I’ve been asking all morning - there are three possible scenarios:

1) Threats to his family (he does have young children, I believe)
2) Blackmail - go read John Grisham’s The Firm - I think it happens in DC all the time!
3) Huge deposit to a offshore account - this is the least likely option as it would be easily traceable and I don’t think Roberts would be swayed by money alone.

I said three years ago there was a problem with the swearing-in and Roberts was “persuaded” to re-do it in secret in order to protect Bambi’s past. This just confirms to me that they have a hold on Roberts and he will do their bidding when ordered to do so!


12 posted on 06/28/2012 10:35:51 AM PDT by VikingMom (I may not know what the future holds but I know who holds the future!)
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To: Dan Nunn

Are any of Robert’s family members “missing”?


13 posted on 06/28/2012 10:36:29 AM PDT by Huskrrrr
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To: Dan Nunn

If Roberts folded, then he should not be a boy scout much less a judge or in charge of the supreme court. The man is a gutless leech, a spineless toad, a boot licking harradan.

Frankly I wish him no good thing


14 posted on 06/28/2012 10:39:27 AM PDT by Nifster
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To: Dan Nunn

If Roberts folded, then he should not be a boy scout much less a judge or in charge of the supreme court. The man is a gutless leech, a spineless toad, a boot licking harradan.

Frankly I wish him no good thing


15 posted on 06/28/2012 10:39:32 AM PDT by Nifster
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To: hoosierham

I wonder what kind of pressure the men of Easy company were under...

Give me a friggin break. If you aren;t willing to stand for something then you will fall for anything. This guy deserves our worst. He is treasoness and devoid of character.


16 posted on 06/28/2012 10:42:37 AM PDT by Nifster
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To: Dan Nunn

Roberts is a traitor. Read the Dissent fka the Majority Opinion. Clearly the individual mandate is backed up with a penalty, not a tax.

In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]l- though this Court will often strain to construe legis- lation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide forthe support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—evenwhen the statute calls it a tax, much less when (as here)the statute repeatedly calls it a penalty.


17 posted on 06/28/2012 10:43:31 AM PDT by LALALAW (one of the asses whose sick of our "ruling" classes)
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To: Dan Nunn

Umm no, he also sided with the libs in every other case this session. This wasn’t due to threats, he is a lefty.


18 posted on 06/28/2012 10:46:46 AM PDT by wolfman23601
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To: LALALAW
As the deciding vote ,Roberts is the evil one that has ignored the clear meaning of the Constitution .

Who would have guessed Kennedy had more integrity as a judge?

19 posted on 06/28/2012 10:49:02 AM PDT by hoosierham (Freedom isn't free)
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To: VikingMom

Maybe there is personal dirt that was not aired during the confirmation. I think Rush knows but is not at liberty to say.


20 posted on 06/28/2012 10:54:40 AM PDT by NativeTxn
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To: ilgipper

Does anyone remember Sen. Ted Stevens? How he was wrongfully prosecuted and lost his election. Had he won the election, we would never have obamacare.

He was later acquitted by the judge and later he died in the airplane crash.

Judge ordered investigation of the prosecutors. One of them, Nicholas A. Marsh, later killed himself.

People, we are dealing here with something very powerful and evil.

http://www.huffingtonpost.com/2010/09/27/nicholas-marsh-suicide-ted-stevens-prosecutor_n_741171.html

http://www.nytimes.com/2010/08/11/us/11crash.html?pagewanted=all


21 posted on 06/28/2012 11:14:50 AM PDT by doomtrooper99 (Offer they could not refuse)
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To: Dan Nunn

Bottom line is america’s demise and fate was in the hands of a few people. The globalists knew the only had to “get to” one of them—and they did. Doesn’t matter how anymore


22 posted on 06/28/2012 11:30:46 AM PDT by subterfuge (BUILD MORE NUCLEAR POWER PLANTS NOW!!!)
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To: freekitty

I look forward to having a “discussion”(wink, wink, nod, nod) with any goon from the feds; including Soetoro, Holder or Sebelius, who tries to force me to comply with this BS.


23 posted on 06/28/2012 11:32:58 AM PDT by A.A. Cunningham (Barry Soetoro is a Kenyan communist)
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To: Dan Nunn; Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; Art in Idaho; ...

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

24 posted on 06/29/2012 10:41:02 AM PDT by BuckeyeTexan (Man is not free unless government is limited. ~Ronald Reagan)
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