Sunday, July 1, 2012

A second "switch in time"

By another Justice named Roberts.

Jan Crawford, appearing this morning on CBS News's Face the Nation, is reporting this morning what most all of us have suspected. Specifically, two unnamed sources have told her that the Chief Justice switched his vote about a month ago. The basic outlines of this scenario make sense, as they explain a number of the anomalies in the various opinions. In particular, it explains why the dissenters--upset by the Chief's switch--(1) included an oddly duplicative Commerce Clause analysis in their joint dissent, (2) jointly signed the dissent, to signify they were hanging the Chief out to dry, and (3) made little effort to fully edit their joint dissent to reflect its status as a dissent, passively aggressively leaving all sorts of tantalizing clues for us to infer what happened. (Crawford actually reports that the joint dissent never was a majority; rather, the failure to even respond to the Chief's opinion, and only to Ginsburg's, was reportedly due to the dissenters' intent to simply ignore the Chief, to not dignify him with any sort of engagement.) Here is the crucial passage from Crawford's piece on CBS's web site:
Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations. 
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy -- believed by many conservatives to be the justice most likely to defect and vote for the law -- led the effort to try to bring Roberts back to the fold. 
"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this." 
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said. 
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.
You can access here entire article here. Randy Barnett writes about it here.

Sometimes in life--probably most times--events like this week's opinion are anti-climactic, not nearly as dramatic as the expectations could support. But then there are those rare moments where the anticipated event is all that and then some, offering drama beyond all our reasonable imaginations. We seem to have gotten the latter here. Wow. Wow, wow, wow.