Skip to comments.Salon: Roberts wrote most of the conservative dissent in the ObamaCare case too
Posted on 07/03/2012 5:31:02 PM PDT by SeekAndFind
I wondered about this on the afternoon of the decision. It stands to reason: If, as most everyone believes, Roberts initially assigned the majority opinion to himself and then ended up flipping at the eleventh hour, the four conservative dissenters would have had to scramble to come up with an opinion of their own while handling the rest of their caseload. (Roberts authored no other opinions over the final two months of the term so he and his clerks could conceivably have drafted something new from scratch late in the process.) The easiest way to do that would be to salvage Roberts' orphaned majority opinion --- or, at least, the bits he wasn't keeping for himself --- and re-work as necessary. Maybe they took the sections he discarded on the tax power and severability, tacked on their own section rejecting the Commerce Clause argument, and called that a dissent. Using Roberts' own words against him would have been a pointed rebuke to him for flipping, even if the Court and its clerks are the only ones with enough background on this process to fully appreciate it.
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 [in Jan Crawford's CBS story] 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.
That’s lefty law prof Paul Campos writing for lefty web zine Salon. Did a mischievous liberal clerk leak to them in order to embarrass the conservative dissenters? Could be, except that … this is more embarrassing to Roberts than to Scalia and company. The idea that his words are on both sides of the Court’s decision makes the outcome seem that much more bizarre and his supposedly principled change of heart seem that much more dubious. He’s talking, almost literally, out of both sides of his mouth. It’s a shot at his credibility and the Court’s institutional legitimacy, which was supposedly the basis for his decision, more than it is a shot at the conservative dissenters. Why would a liberal clerk want to sandbag him for siding with them on the biggest case they’ll ever rule on?
Then again, if this is true, why wouldn’t the (presumably conservative) Court sources who leaked to Jan Crawford have simply said so? Obviously, they didn’t borrow his discarded opinion because they’re lazy. They borrowed it because they were pressed for time and/or because they wanted to make a point — or, just maybe, because they held out hope to the bitter end that he’d switch back and join them in striking down the law. By keeping the dissent intact as a potential majority opinion rather than larding it up with language lashing out at Roberts, the four conservatives made it as easy as possible for him to reconsider and climb back aboard right down to the wire. To my mind, that’s the best explanation for the tone of the opinion, the inclusion of the otherwise gratuitous severability section, and the lack of any references to Roberts’s opinion. They weren’t working on a dissent, they were working on a shadow majority, ready to go right out of the box in case Roberts came back into the fold. (Crawford notes that Kennedy was lobbying Roberts up to the last minute, in fact.) That doesn’t settle the issue of who authored most of the eventual dissent — maybe it was mostly Roberts’s draft or maybe it really was co-drafted by Scalia, Kennedy, Thomas, and Alito with an eye to winning Roberts back over — but it settles most everything else.
Here’s Krauthammer accusing Roberts of letting the left intimidate him. Exit question via TNR: Were Thomas and Kennedy the CBS leakers?
It was blackmail.
The Chicago Way.
1. Roberts’ homosexual past
2. Roberts’ illegal adoption of his children
Shame on Bush for nominating this guy.
He wants everyone to love him.
He wants everything both ways.
Did somebody slip him a two headed quarter?
Can’t anyone do decent vetting these days, particularly for SCOTUS justices who are there for life? That is a serious blunder that needs to be remedied in this era of 90+ year olds.
It was blackmail.
I’m starting to think that Occam would agree with you.
Bush and the RINOS knew about Roberts’ homosexuality and the illegal adoptions and so did the ‘Rats. The ‘Rats just bided their time for 7 years until it was time to play the blackmail card.
The left rolled him like a pimp turns out a woman to work the streets. Now they want him humiliated and broken so he never thinks of leaving them.
If the left was rolling him why didn’t he just uphold the mandate/commerce clause instead of writing this illogical piece of crap tax mandate opinion which is opening him up to justified ridicule?
There you go introducing logic into a FR thread.:-)
Whatever happened in this decision, there was something underhanded going on.
The two things that were appealed out of the 11th circuit were whether the Medicaid expansion was unconstitutional and whether the mandate could be supported under the interstate commerce clause.
That’s pretty much it. NOT whether or not it was a tax.
So Roberts basically went out into la la land and pulled something out of his rear because HE KNEW IT FAILED THE INTERSTATE COMMERCE CLAUSE.
And he tries to argue - quite miserably, I might add, - that it IS NOT a direct tax subject to apportionment.
It’s not an excise tax, it’s not a duty or an impost tax, it is not an indirect tax that can be shifted to a consumer, it is a direct tax on individuals.
Something went down. He was threatened or paid off or coerced or something.
If he had any honor, he would simply resign from the court, disclose exactly what happened, and redact his vote.
I’d prefer that he resign from the court, disclose everything and RECANT his vote. FWIW
This is proof obama knew the vote, thanks to Kagen and Soto, and the blackmaid threats began.
And I’m also convinced every republican in any kind of leadership position is as dirty as they come. And they’re being blackmailed, too. That’s why they do nothing when the king issues a mandate.
I’m sure somebody will soon show me the error of my ways.
And why didn’t they roll him in the Heller case where he upheld the 2nd amendment
In any case we got royally screwed
Wonder if he read all the Nazi/Fascist portions of the bill
I called this one:
Roberts Switched Views to Uphold Health Care Law (Original CBS Report)
Sun Jul 1 17:29:26 2012 · 119 of 310
RightFighter to Girlene
The dissent is unsigned because Roberts wrote it - it was originally to be his majority opinion. When he switched sides, the conservatives left most of it in place and didnt sign their names to it to give a clue that it was originally his opinion.
It’s an embarrassing decision. I don’t see how it can be viewed in any other light.
Don’t specifically know...but there is interesting detail here.
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