This weekend, CBS reported that Chief Justice John Roberts changed his mind and his vote before the final Obamacare decision was announced. While he initially sided with the conservatives, the report says, he eventually joined with the liberals on a technicality. Now, a report is out that seems to show just how involved he was with the conservatives before having allegedly switched.
The liberal outlet Salon.com has a story from law professor Paul Campos citing “a source within the court with direct knowledge of the drafting process.” That source makes a stunning claim: Roberts not only authored the majority opinion, but he also contributed to the dissent — a dissent he was drafting before switching his vote.
It should be noted that the CBS piece does directly deny this, saying that such reports are “inaccurate”:
The majority decisions were due on June 1, and the dissenters set about writing a response, due on June 15. The sources say they divided up parts of the opinion, with Kennedy and Scalia doing the bulk of the writing.
The two sources say suggestions that parts of the dissent were originally Roberts’ actual majority decision for the court are inaccurate, and that the dissent was a true joint effort.
The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.
The Salon report recognizes this, but still makes the charge:
Yet that, I am told by a source within the court with direct knowledge of the drafting process, is exactly what happened. My source insists that “most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’ chambers in April and May.” Only the last portion of what eventually became the joint dissent was drafted without any participation by the chief justice.
This source insists that the claim that the joint dissent was drafted from scratch in June is flatly untrue. Furthermore, the source characterizes claims by Crawford’s sources that “the fact that the joint dissent doesn’t mention [sic] Roberts’ majority … was a signal the conservatives no longer wished to engage in debate with him” as “pure propagandistic spin,” meant to explain away the awkward fact that while the first 46 pages of the joint dissent never even mention Roberts’ opinion for the court (this is surely the first time in the court’s history that a dissent has gone on for 13,000 words before getting around to mentioning that it is, in fact, dissenting), the last 19 pages do so repeatedly.
The explanation for this, according to the source, is very simple: Roberts’ chamber did much of the drafting of the former section, and none of the latter. In short, it appears Chief Justice Roberts ended up in large part authoring both the majority opinion and the dissent in National Federation of Independent Business v. Sebelius. This would seem to give a whole new meaning to the term “swing justice.”
For now, it’s only according to unnamed sources. But if true, it surely adds to the lore of one of the most stunning decisions — if not for its outcome than for how it was achieved — in Supreme Court history.