Was Scalia’s Dissent Originally a Majority Opinion?

The Volokh Conspiracy ^ | June 28, 2012 | David Bernstein

[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.

[Dan Nunn]

Interesting analysis. I wonder what kind of pressure Roberts was under, and from whom.

[ilgipper]

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.

[A.A. Cunningham]

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.

[NativeTxn]

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??

[jwalsh07]

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

[A.A. Cunningham]

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.

[Bizhvywt]

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.

[txrefugee]

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.

[P3 Orion]

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.

[hoosierham]

Chicago mob-style threats.obama will do anything.

[freekitty]

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.

[VikingMom]

“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!

[Huskrrrr]

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

[Nifster]

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

[Nifster]

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

[Nifster]

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.

[LALALAW]

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.

[wolfman23601]

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

[hoosierham]

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?

[NativeTxn]

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