The Roberts Switch: Revisited! Updated!

After my last post about the potential Roberts switch, I received some comments from readers via, well, the blog comments (imagine that!) and email. A few additional observations based on those comments (and see update below! (6/29 at 10:00am):

  • The joint dissent totally ignores the Chief’s opinion. It’s really quite amazing More than anything else, that is the best evidence I’ve heard that the Chief’s opinion was new/late. Perhaps the joint dissent did not have time to respond?
  • The joint dissent is written, generally, in the style of a “majority” opinion. It is more constructive (it builds up its own affirmative argument/decision) and less destructive (it attacks Justice Ginsburg’s “dissent” as a sort of counter-punch, rather than its main thrust).
  • The severability analysis at the end of the joint dissent reads more like something that was necessary to the outcome of the case, not just an academic exercise that the joint dissenters went through in the service of some sort of desire for completeness. How many dissents go through a severability analysis like that? Perhaps it was written as a majority, but once the majority was lost, there was no need to cut it.

Those are some good observations. (Thanks comments!) And based on those observations, my needle has definitely moved a bit more toward “it was the majority before a switch!”

But there are still some problems. Let’s assume that things started out after conference with Roberts in a 5-4 majority with Kennedy, Scalia, Alito, and Thomas, as posited by the switch hypothetical. In that scenario, Ginsburg is assigned to pen the dissent. But who got assigned the majority decision? How does that explain the “joint dissent” strangeness? In any event, under this theory, at the last minute, Roberts changes his mind! And his opinion is so late that there’s no time for the joint dissent to change the opinion.

Well, if that happened, then how did Justice Ginsburg have time to adjust her dissent to respond to the Chief Justice’s opinion? If she had time, surely the joint dissenters should have had time as well — at least enough time to make the cosmetic changes that would have been required, or to respond to the Chief’s tax argument. And why would the joint dissenters not join some/all of the Chief’s commerce ruling? Why did the Chief feel the need to draft his own Commerce Clause “essay” instead of just joining the joint dissenters’ opinion on that issue, when the holdings were remarkably similar?

The joint dissent does read like a majority. And the failure to address the Chief’s opinion is indeed extremely strange. But there are other explanations besides a last-minute defection. What about a scenario where the Chief was unwilling to commit to the joint dissenters at the conference, leaving the conference as sort of a free agent or a loner from the outset. The joint dissenters then authored a “draft majority” and circulated it in the hopes of gaining the Chief’s vote. It failed to do so. But from the conference, the Chief knew that he could get the liberals’ vote on the tax issue. So he informed the rest of his colleagues (at some point, perhaps immediately after the conference) that he was going to draft his own opinion for the Court, telling them a general outline of his theory. Justice Ginsburg, who knew that she would not have 5 votes for a Commerce Clause ruling, could go ahead and draft (or keep) much of her “dissent” on the commerce point. And she and the others were free to join the Chief on the tax issue without adding their own discussion. 

Meanwhile, the joint dissenters already had a full opinion on the commerce issue, so there was no need join the Chief in that portion of the opinion. And perhaps they thought the tax issue was not worth spilling too much ink.

But anyway, if Justice Ginsburg had time to digest and respond to the Chief’s opinion, I just can’t believe that the joint dissenters didn’t have the time. I have no doubt there is a great back-story here, but I don’t necessarily think that the story needs to be a “last minute” defection, or some sort of spite-fueled dissent from the conservative wing. I am, however, really looking forward to that law clerk’s tell-all book!

Update (6/29 at 10:00am):

David Frum published an email from a reader that is more along the lines of what I’m thinking:

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.

I like that. As far as I’m concerned, any theory of a Roberts changed vote (and the timing of such a change) needs to explain the following:

  1. How did Roberts have time to write such a long opinion? (Not a last-minute change!)
  2. Why would Ginsburg have time (and reason) to respond to Roberts’s opinion, but the joint dissenters would not?
  3. Why would the joint dissent be a joint dissent, instead of a single-authored dissent?
  4. Why would the joint dissenters not have joined Roberts’s discussion of the Commerce Clause holding? (Or why would he not join theirs?)

The “last minute switch!” or “they had him and lost him!” theories don’t really have answers to all of those questions.


3 thoughts on “The Roberts Switch: Revisited! Updated!

  1. Pingback: The Roberts Last Minute Switch? Not So Fast… | Ziff Blog

  2. Pingback: Sundry Thoughts on NFIB v. Sebelius, the Day After… | Ziff Blog

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