More on Roberts' ACA decision

[For those readers who have had enough of this, I'll return to other subjects soon.   But this is one of the major decisions in decades and will be the defining legacy of Barack Obama's presidency.   Besides, I find it fascinating to try to understand the inside workings of SCOTUS.]

Conservative pundit David Frum continues the speculation that Roberts either changed his vote or withheld it until he read the opinion the conservative bloc wanted him to join.   He quotes a former appellate court law clerk as saying "any informed reader would conclude after reading the first three pages [of the dissent] that it was written to be the majority opinion."

Added to that is the fact that all references to the prevailing majority opinion are tacked on at the end;  and there are 15 references within a few pages of the body of the text that refer to Justice Ginsburg's opinion as "the dissent."   Likewise, Justice Ginsburg's opinion is sharply critical of "the Chief," which she would not likely have done if she were trying to keep him on her side.

Further evidence from David Bernstein, writing on the Volokh Conspiracy, a blog written by law professors:  the dissent contains a whole section explaining why they do not accept the separability argument -- which is totally irrelevant, given that severability was not part of the Roberts explanation.

Another theory advanced by Ed Whelan on the Volokh blog:  Roberts began writing the opinion when he was planning to over-turn the law, then changed his mind and switched his vote, using the tax option as justification.   The dissenters then took what he had written, added to it, and turned it into their dissent.   This would explain why the dissent was not signed.   Part of it was written by the author of the majority opinion, who then changed his vote.

But back to what Frum writes: 

"I imagine the dissenters either had Roberts's vote or that Roberts left the post-argument conference without commiting to a side and saying something to the effect of "let me see how it writes." He certainly didn't trust the dissenters, as he clearly instructed his law clerks to begin working on an alternative majority opinion (the final product was too polished and too long to have been written at the last minute). And he waited to see what was written.

"What was written was not measured judicial analysis, but rather an opinion that started with a goal --- throw the bill out --- and then figured out how to get there, blowing by any precedent in its path."

Important for Roberts was probably the fact that the dissenters were not interested in upholding some parts of the law while over-turning others -- ie, the "severability" option.  They insisted on skuttling the whole law.   Frum continues:

"So Roberts was left with a choice: engage in the severability analysis himself (a messy task indeed) or find some other way to uphold the bill. He chose the latter, and the result is what we have today.

"That dissent intended to get his vote. It might have, had it only struck a portion of the law. But Roberts correctly realized that he couldn't jump off that cliff without precedent or logic supporting him. Kennedy, Alito, Scalia, and Thomas went all in. And they lost their bet. Just like the conservatives in Congress."

It seems pretty clear from all this that Roberts is the key to this whole decision.   Not only was he the swing vote -- but perhaps he himself swung from 'no' to 'yes' during the process.

I find it completely uncredable that the dissenting justices would have allowed the release of such a cobbled together, messy dissenting opinion -- unless they intended for it to show clearly that Roberts had "betrayed" them.   

It's interesting that some of the good writing about the decision is coming from conservatives themselves -- who would have once been considered "moderates."   Maybe this will mark their return to respect and the decline of the know-nothing right fringe.

Ralph