I finally finished reading the opinion yesterday, and was going to write a post about what I think happened. Some more breaking news from Jan Crawford on the leaks, with some important new information that strengthens what I speculated happened.
The fact that the joint-dissenters referred to RBG’s opinion as a dissent by itself was not dispositive that her opinion was once a dissent. Instead, in the places where it refers to it as a “dissent,” they are talking about her commerce clause analysis. In that sense, it is a dissent, because it only has four votes. I knew the joint-dissenters would not leave that “dissent” language in as a typo. So the fact that RBG’s opinion was actually a dissent there makes sense.
What didn’t make sense was why there was absolutely no mention of the Chief’s opinion. Initial stories suggested that the Justice’s did it out of spite or pettiness. Or to leave what I would call an “artifact” from SCOTUS nerds to piece together. I don’t know. Perhaps, but that seems thin.
This news from Crawford makes more sense:
But on this issue of federal power, Kennedy was firm. The conservatives refused to even engage with Roberts on joining his opinion to uphold the law. They set out writing their own opinion – they wrote it to look like a majority decision, according to sources, because they hoped Roberts would rejoin them to strike down the mandate. Kennedy relentlessly lobbied Roberts until the end to come back. Of course he did not, and the conservatives’ decision became a dissent.
Perhaps until the very end, the conservatives thought Roberts would join on board. In that case, the dissent would become a majority opinion, and whammo, 5-4 to strike down. Now, I suppose they could have drafted an alternate version of the opinion, but maybe they really thought he would defect back. RBG’s opinion, however, does respond to the Chief’s draft. So it must have been circulated fairly early on. Though, the Chief’s opinion was poorly written, and a lot of the sections lacked the Chief’s characteristic zest and pithy writing.
So, perhaps the betrayal is that the Chief suggested he would swing back but in the end did not.