The Volokh Conspiracy

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Was There a Double Flip in the November Sitting?

Did the assignments change in both Fulton and California?


For some time, I have expected Chief Justice Roberts to break my heart on the ACA case. It's become a June tradition. I fully expected the Court to hold that the parties had standing, and that the mandate was unconstitutional, but the mandate could be severed from the rest of the ACA. A pyrrhic victory, to be sure, but consistent with the Roberts Court's minimalism.

I also expected Justice Alito to write the majority opinion in Fulton. I doubted there were five votes to overrule Smith. Justice Barrett signaled that point loud and clear during oral arguments. But I expected some opinion that would perhaps amp up the level of scrutiny for Free Exercise Clause claims.

My speculation was informed by SCOTUS Kremlinology. During the November sitting, there were eight argued cases. As of yesterday, only three Justices had not yet written from that sitting: Chief Justice Roberts, and Justices Breyer and Alito. I made what I thought was a safe prediction. Chief Justice Roberts would assign himself the Obamacare case. This was a volatile case, and he could exert maximum control throughout the process by keeping it in-chambers. And, the Chief would assign Fulton to Justice Alito. In late November, Justice Alito gave a valedictory speech at the Federalist Society Convention. He didn't have the demeanor of a person who had the rug swept out from underneath him. Neither prediction proved correct.

This morning, at 10:00 ET on the dot, I feverishly refreshed the Supreme Court's opinion page. I jumped when California v. Texas appeared. I was almost certain this case would be decided the last day of the Term. And then I saw a single letter next to the entry: "B." Huh, I thought? Did Justice Breyer have the majority opinion? How could it be? Why would the Chief relinquish this control? With some trepidation, I clicked on the link to the PDF. (It wasn't real till I saw it). And there it was. A 7-2 majority, finding that the Plaintiffs failed the traceability prong of the Article III standing test. Justice Breyer's opinion was super-short–about 16 pages long.  Justice Thomas wrote what seemed to be a begrudging concurrence, where he agreed the traceability prong was not satisfied. Justice Alito wrote a thirty-one page dissent, joined by Justices Gorsuch. They found there was standing, the mandate was unconstitutional, and other provisions of the law that injured the plaintiffs should be enjoined.

Around 10:10, I saw that the ATS cases were decided. I will let other people comment on that mess. Then, at 10:20, Fulton came down. My prediction about Alito's authorship was wrong. Instead, we had a 9-0 (!) opinion by the Chief. At quick glance, the reasoning was razor-thin. Several hours later, I'm still not entirely sure the basis of the 15-page majority opinion–confusion is a feature, and not a bug of any Roberts decision. Justice Barrett concurred, joined by Justice Kavanaugh, and in large part by Justice Breyer. She declined to overrule Smith in this case. Critically, she rejected Michael McConnell's originalist argument that Smith was wrong: she found the "historical record more silent than supportive." Justice Barrett would only consider revisiting the case in light of "textual and structural" concerns based on modern doctrine. (So far I have been holding my breath about Barrett; I will exhale very soon). Justice Alito wrote an 87-page (!) concurrence, joined by Justices Thomas and Gorsuch. It emphatically endorsed McConnell's reading of the Free Exercise Clause, excoriated Justice Scalia's opinion in Smith, and found no stare decisis values favor defending the case. Justice Gorsuch wrote a separate dissent that rejected the Chief's construction on Philadelphia municipal law.

Allow me to engage in some absolute rank speculation. I think the opinions in both Fulton and California switched.

Let's start with Fulton. At conference, the votes were fractured. Alito, Thomas, and Gorsuch voted to overrule Smith. Barrett and Kavanaugh joined the majority opinion in part. They were not willing to overrule Smith, but found some other way to rule for CSS. (Maybe targeting?).  Roberts wrote a concurrence in judgment that reflected his ultimate majority opinion: the law is not generally applicable because of the exemptions. Therefore, it fails strict scrutiny. Gorsuch wrote a concurrence, responding to the Chief's concurrence, that responded to local municipal law. Justice Kagan wrote a vicious dissent about stare decisis. She raised the mantle of Justice Scalia's decision in Smith. Justice Sotomayor wrote a dissent how this decision will enable bigotry and harm to LGBT families. Then Justice Breyer brokered a compromise. He was willing to join the Chief's opinion, and much of Barrett's concurrence. Once Breyer flipped Kavanaugh and Barrett, Kagan and Sotomayor withdrew their dissents, making the Chief's razor-thin opinion the majority. Ruling against LGBT families must have been bitter pill to swallow, but there is no evidence that anyone was actually ever denied a service. CSS is not like Jack Phillip's bakery, where anyone can call, demand a cake, and sue. Adoption is a lengthy process, and it is unreasonable to set up a test case on a whim. At that point, Justice Alito was stuck with his 87-page majority, which became a concurrence.

What evidence do I have?  First, Chief Justice Roberts's opinion barely acknowledges the Alito dissent. There is only one citation. Meanwhile, there are four citations to Gorsuch's dissent. Second, consider the timing. Fulton was argued in November. The majority opinion was only 15-pages. It didn't respond to the dissents. There was no "ping-ponging" back and forth. This ostensibly unanimous case should have been released months ago. Third, much of Justice Alito's decision reads like a majority opinion. It lacks that general, bitter dissent tone. And the extensive discussion of stare decisis seems designed to respond to Justice Kagan's broken record.

California presents a tougher case. After conference, the Chief assigned himself the majority opinion. He found that the state Plaintiffs had standing based on Department of Commerce, the mandate was unconstitutional, but the mandate was severable from the rest of the law. That opinion was joined in full by Justices Kavanaugh and Barrett. Justices Alito and Gorsuch would have gone further, and declared unconstitutional all provisions that injure the state plaintiffs. (This concurrence ultimately became the dissent). Justice Thomas concurred, and found there was no standing. (I don't think his vote changed.) Justice Breyer wrote a very narrow dissent based on redressability. (This dissent ultimately became the majority opinion). At some point, the majority opinion on severability would not write. Critics liked to dunk on the severability issue issue, but once you've found standing, the Plaintiffs had an easier burden for severability. At that point, the Chief saw the narrow Breyer dissent, and flipped. Kavanaugh and Barrett followed the Chief. Roberts withdrew his opinion. And Alito's opinion became a dissent.

What evidence do I have here? First, I think timing cuts in favor of the flip theory. The majority opinion was really narrow. And it does not engage the Alito opinion at all. This case should not have taken eight months to release. Second, the majority opinion refuses to consider the Plaintiffs' standing argument that, I think, was fairly raised below. And I am not familiar with a rule that jurisdictional arguments can be waived. Courts have an unflagging obligation to consider jurisdictional arguments, especially where the lower court ruled on that basis. The citations to Cutter and Adarand do not say what Justice Breyer suggested. That Cf. was important.

Third, the majority opinion quietly rejects California and the House's theory of the case. Look no further than the first two sentences:

As originally enacted in 2010, the Patient Protection and Affordable Care Act required most Americans to obtain minimum essential health insurance coverage. The Act also imposed a monetary penalty, scaled according to income, upon individuals who failed to do so. 

A requirement, and not a "choice." A penalty, and not a "tax." There was a mandate. And a penalty. They are separate. The word "required" and "requirement" appear throughout the opinion. Once again, this pill must have been bitter for Justice Kagan to swallow. During oral argument, she fiercely resisted this point with Texas SG Kyle Hawkins. She argued that NFIB held that the ACA did not impose an "unconstitutional command." Yet all seven justices accepted this premise, without any debate. Roberts would not have accepted an opinion that failed to recognize that point. And the Kagan-three accommodated. I will claim only a modest victory on this front.

Of course my thinking here may be entirely wrong. It probably is. I often feel somewhat conspiratorial discussing potential flipped votes. To quote Justice Kagan, an election is not "flipped" until all the votes are counted. And at the Supreme Court, the votes are only formally counted when the opinion is released. It is, then, something of a misnomer to say a majority opinion "flipped." But we can safely say that the assignments at conference did not hold.

I will have much more to say about both Fulton and California. I'll be writing about the latter case for the Cato Supreme Court Review. I've edited both cases for our casebook supplement. Please email me if you'd like a copy.