Has a second “switch in time” saved nine? That’s the unavoidable impression that a reading of the four dissenters’ joint opinion in the PPACA case leaves…. Rumors had been circulating in legal circles for weeks that Chief Justice Roberts in particular was under enormous political pressure not to be the vote that would overturn the most significant piece of social legislation passed by Congress in decades….
It is impossible for a lawyer to read even the first few pages of the dissent without coming away with the impression that this is a majority opinion that at the last moment lost its fifth vote. Its structure and tone are those of a winning coalition…. But when we get to Page 13, far more conclusive evidence appears: No less than 15 times in the space of the next few pages, the dissent refers to Ruth Bader Ginsburg’s concurring opinion as “Justice Ginsburg’s dissent.”
There is one likely explanation for this: The dissent was the majority opinion when those who voted to overturn the entire ACA signed off on sending their text to the printer. In other words, Chief Justice Roberts changed his vote at the very last possible moment….
Another 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 — and, as they no doubt see it, to the country and the Constitution — through his last-moment reversal.
Update: As commenters point out, it is true that Ginsburg does dissent to part of the majority opinion, while concurring with most of it, but it’s also clear that the four joint dissenters are referring to a full dissent, not a dissent in part, as the following passage makes clear:
Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration.
The dissenters are saying that construing the mandate as a tax would require them to address a constitutional question that they don’t have to address. But the only reason the Court would not have to address this question is if the majority in fact refused to construe the mandate as a tax – which is exactly what the Court’s majority ended up doing.
In addition, the joint dissenters refer consistently to Ginsburg’s item as “the Dissent.” This phrase makes no sense except in the context of a majority opinion referring to a single dissent.
Lawrence Solum: Evidence that the Votes Shifted After Conference (Initial Vote to Declare Mandate Unconstitutional)