Report: John Roberts Wrote the Bulk of the Dissenting ObamaCare Decision That He Voted Against

Did Supreme Court Chief Justice John Roberts write both the majority ruling and the dissenting opinion in the ObamaCare case? Earlier this week, CBS News reported that Roberts switched his vote late in the process after initially voting against the law's individual mandate, writing the majority opinion and saving the law in the process. 

Now, at Salon, law professor Paul Campos writes that sources inside the high court tell him that a substantial portion of the final dissenting opinion signed jointly by Justices Kennedy, Scalia, Thomas, and Alito was in fact initially drafted inside John Roberts' chambers:

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 that the joint dissent was drafted from scratch in June is flatly untrue. Furthermore, the source characterizes claims by Crawford’s sources that “the fact that the joint dissent doesn’t 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 court’s 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.

The twist ending that no one expected! 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • db||

    The more this ramps up, the more I worry that the GOP is going to attempt to impeach Roberts. This could be a very bad move.

  • VG Zaytsev||

    Bullshit.

    The assclown deserves to be impeached.

    I'm starting to think that he's mentally incompetent.

  • ant1sthenes||

    There's no way in hell that the GOP will impeach Roberts if it means giving Barack another SCOTUS pick. If Mitt wins, and they still care, maybe. But Mitt strikes me as another Republican in the Bush mode, so he'd probably just nominate another Roberts type anyway.

  • Tulpa the White||

    On what grounds would they impeach him?

  • Night Elf Mohawk||

    They could just make up a bunch of unreasoned, inconsistent bullshit. It's not like he could argue against something like that.

  • Trespassers W||

    *golf clap*

  • ||

    Wow, taking flip-flopping to new dimensions. Not only did he change his mind, he was able to officially submit both positions simultaneously.

  • Sal Paradise||

    Directed by M. Night Shyamalan.

  • Matrix||

    Damn you! I was going to say something like that!

  • Auric Demonocles||

    Boom! Twisted!

  • Cavpitalist||

    The impartiality of Elena Kagan was dead the whole time.

    Oooo-oooh!

  • Auric Demonocles||

    She was part of the dissent and Thomas was part of the majority. Boom, twisted!

  • ||

    Although I find all this vote-switching, opinion-writing hullabaloo sorta curious, I can't help remembering that none of it makes any damn difference.

  • Auric Demonocles||

    Rationally that is true, but emotionally it's making me even angrier than I already am over this bullshit.

  • Stormy Dragon||

    The fact that people sometimes change their mind after thinking about things for a while makes you angry?

  • Auric Demonocles||

    The fact that we're saddled with this monstrosity of a law without regard to the Constitution makes me angry.

  • Stormy Dragon||

    That has nothing to do with the "vote-switching, opinion-writing hullabaloo" though. Why does that make you more angry?

  • Auric Demonocles||

    See TomD's comment.

  • TomD||

    The fact that people sometimes change their mind after thinking about things for a while makes you angry?

    No, it's about knowing just-how-close this thing was to being mercifully overturned.

    It's sort of like how it's more painful when your team* loses on a last-second shot in overtime rather than just getting blown out from the get-go.

    (* No, I'm not lapsing into Episiarch's much-dreaded red-team/blue-team dynamic. Just making an analogy about the emotions involved.)

  • R C Dean||

    Its entertainment, or perhaps irritainment, nothing more.

    Although there may be a silver lining: if it becomes apparent that judicial pacifism is actually damaging the Court's legitimacy, maybe we won't see as much of it in the future.

  • Paul.||

    That which sides with the progressive viewpoint is a thoughtful, constitutionally grounded position. That which sides with the conservative/libertarian viewpoint damages the Court's legitimacy.

  • ||

    It's merely another reminder of how much of a sham "rule of law" is.

  • Stormy Dragon||

    Has there ever been another supreme court case where the same justice wrote both the majority opinion and the primary dissent?

  • Elphie||

    I think the Borg Supreme Court effectively operates this way.

  • ||

    "The Justices and I will now confer using high-speed telepathy."

  • Auric Demonocles||

    "And in a rare, double whammy decision, the court finds polygamy Constitutional."

  • Paul.||

    It's a tax!

  • db||

    And the Borg have free health care!

  • Gray Ghost||

    Didn't Burger have an infamous habit of assigning himself the majority opinion and writing it in such a way to cabin it as much as possible?

    I find Roberts's last minute switching completely inexplicable. I really hope it wasn't due to the apocryphal horse's head in the bed, and I can't think of many other ways you could sway someone with a life appointment and near total freedom in how he conducts his job.

    We're not supposed to be at that point yet on our journey mirroring Rome's.

  • Finchster||

    You'd be surprised how powerful is the desire to be thought well of by law professors and the New York Times. These Ivy League types have been patted on head by authority their entire lives.

  • Paul.||

    Cue thoughtful debate on Orange Lines.

  • Tulpa the White||

    Hence Heller and Citizens United and that affirmative action case.

  • Tman||

    In case you want to get extra pissed off about this, go watch this video of Wasserman-Schultz explaining why this is not a tax.

    http://hotair.com/archives/201.....not-a-tax/

    Holy shit this blew my mind, these folks literally have no shame or honor whatsoever.

  • Auric Demonocles||

    There's always the Obama interview too.

  • Jerry on the road||

    Aaron Sorkin is already writing the plot for a new HBO series: The Supreme Court.

  • Mint Berry Crunch||

    "If you haven't seen John Roberts switch his vote, then you haven't seen Shakespeare the way it was meant to be played!"

  • TomD||

    The twist ending that no one expected!

    I don't know about that. The wording/framing of the dissent was the very thing that initially fueled speculation about Roberts' switch, no? (e.g., it refers to the majority opinion as "the dissent" several times, indicating that at one point it very well had been.)

  • Tulpa the White||

    it refers to the majority opinion as "the dissent" several times, indicating that at one point it very well had been

    That's the first I've heard of this...you have a link to that analysis?

  • Tulpa the White||

    Uh, also, presumably the majority opinion didn't exist when Roberts was still on the "overturn" side. So how could it have referred to it as the dissent in your alt.universe?

  • TomD||

    Huh?

    The "majority opinion" would have started life as the dissent, in the same way the dissent would have started life as the majority opinion.

    The speculation I'm referring to started literally within hours after the decision came down Thursday.

    http://www.volokh.com/2012/06/.....y-opinion/

    http://www.nationalreview.com/.....-ed-whelan

    This stuff was everywhere last week. What's with the weird "alt.universe" pissiness thing?

  • TomD||

    I mean, the issue was even raised here at Reason that day:

    http://reason.com/blog/2012/06.....ght-wing-c

  • ||

    I am Jack's double-thinking schizophrenic brain.

  • Eduard van Haalen||

    Chief Justice Harvey Dent.

  • Eduard van Haalen||

    John Roberts debates with the Chief Justice:

    http://www.youtube.com/watch?v=TJkiN4-eo8I

  • Tulpa the White||

    One wonders why these "inside sources" weren't blabbling about the decision itself for way more $$$ than they're getting now.

    Oh yeah, now the "inside information" isn't falsifiable. Wonder what that means.

  • Auric Demonocles||

    An alternative is that now they aren't breaking any secrecy laws/agreements.

  • ||

    Anyone who has been paying attention knows what happened.

    Roberts vote was leaked to dsenior Democrats in the White house and/or Congress.

    This led to an orchestrated campaign to pressure Roberts to switch votes in mid May. There were numerous unsourced reports that Roberts was under "intense pressure" to change his vote on an unspecified case at the court. Meanwhile there were numerous articles in the media discussing how the court's legitimacy would be undermined if the health care law was thrown out on a 5-4 ideological split.
    Somehow these people knew that Roberts was the swing vote, rather than Kennedy, suggesting they had inside information.

    That campaign suceeded, and Roberts caved and agreed to change his vote and uphold the law under the taxing power.

    Subsequently, the right of the court fought a month-long battle to get him to switch back. That is why the dissent is written as if it were a majority opinion. They did not have time to craft a new dissent after Roberts swtiched.

    The conservatives are now leaking the story to the press in the hopes that people will connect the dots. That Roberts vote was leaked and political pressure was used to pressure the Chief Justice to alter a critical ruling.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement