Lawrence Solum (Legal Theory Blog), David Bernstein (Volokh Conspiracy), and Paul Campos (Salon) all speculate that perhaps Chief Justice Roberts “suddenly changed his vote” at the “very last possible moment” (to quote Professor Campos). (Professor Solum merely speculates that the Chief’s vote changed at some point after the initial conference.)
Of course, I have no idea what happened in the conference, and the four-Justice “joint dissent” from Scalia, Thomas, Kennedy, and Alito is indeed strange. When was the last time we had a collective dissent with no single author like that? But I think folks might be jumping the gun a bit to assume the explanation behind the joint-dissent is a switch by the Chief.
What’s the proffered evidence for the switch? Well, first of all, the joint dissent refers to Justice Ginsburg’s opinion as “the dissent,” which makes it seem like perhaps the joint dissent was once the majority with Ginsburg’s opinion as the dissent. So did the proofreaders miss something after the switch? Did they forget to change “the dissent” to “Justice Ginsburg’s opinion”? I doubt it. Ginsburg’s opinion is a dissent on the issue of the commerce power. And, indeed, the relevant portion of the joint dissent begins by stating that it is a response to “Justice Ginsburg’s dissent on the issue of the Mandate” regarding the “Commerce Clause power.” That seems reasonable to me.
What else? There’s the whole “we” business. Why does the joint dissent use the language of “we,” which is generally reserved for an opinion of the Court? Well, the obvious answer is that the dissent purports to be written jointly by a group of four Justices. That would make the “we” pronoun entirely appropriate — that’s the pronoun that gets used for groups of people. Why would the four Justices decide to write a joint dissent? I have no clue. But the joint nature of the dissent is (to my mind) the most obvious answer to the “why use ‘we’?” question.
There are other theories. Perhaps, as Professor Campos supposes, Justice Roberts switched “at the very last possible moment.” That might not have left enough time to go back and change the references and tenses in the opinion to make it an individually drafted opinion with others joining — to change the I’s to we’s. But that surely is wrong (as the Professor states). If the Chief Justice had time to draft an entire new middle-ground opinion, the joint dissenters had plenty of time to revise their opinion into a proper dissent. Clerks just don’t miss that sort of thing. Professor Campos therefore posits another theory:
[The] unavoidable conclusion seems to be that the dissenters intentionally left the parts of their text referring to Ginsburg’s “dissent” unchanged. This was a symbolic gesture, intended to reveal, without formally breaking the justices’ code of silence, what the Chief Justice did to them . . . through his last-moment reversal.
Wow. I repeat: Wow. I certainly don’t know for sure that that is not what happened. But I’m not ready to conclude that all four of the conservative dissenting Justices blatantly gave the Chief Justice a spite-inspired message-in-a-bottle coded slap in the face. That would be something. Isn’t the simpler and more reasonable conclusion that, for some reason, the joint dissenters did write a joint dissent, and therefore used the language of “we”? I think so.
Professor Bernstein also provides a possible motive for the Chief’s switch:
[W]as he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA?
I’ve never thought that any of the Justices would be swayed by that supposed “heat.” Professor Campos writes that President Obama “issu[ed] something of a public warning on the subject” when he said that the invalidation of the ACA would be “unprecedented” and “extraordinary.” I dunno. That doesn’t seem like a scary warning to me. I doubt it would be sufficient to frighten the Chief.
So, without more evidence (or until some law clerk writes a tell-all book in 30 years) I’ll refrain from concluding that an intimidated Chief Justice switched his vote at the last moment, prompting the scorn and coded opprobrium of his colleagues. But hey, I could be wrong!