SCOTUS Springs a Leak (or Several)

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Written By admin at Wednesday, July 4th, 2012

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Supreme Court Chief Justice John Roberts in 2005

The secrecy surrounding Supreme Court deliberations is such that two respectable news outlets can carry stories that don’t agree, and the world may never see a correction.

As it stands, we have competing narratives — one from CBS’s Jan Crawford and another from law professor Paul Campos, writing for Salon — about the events leading up to court’s announcement of the health-care ruling.

Crawford’s story says Chief Justice Roberts initially sided with the court’s four other Republican appointees but changed his mind, touching off “a month-long, desperate campaign to bring him back to his original position.” Justice Anthony Kennedy is said to have been the leader of the effort to reset Chief Justice Robert’s thinking. The effort failed.

So, the story goes, justices Kennedy, Samuel Alito, Antonin Scalia and Clarence Thomas pulled together a blistering joint dissent that was largely aloof to the majority opinion written by Chief Justice Roberts. This was by design, according to Crawford. So angry were the four justices, they “no longer wished to engage in debate with him.” The story, published over the weekend, cites “two sources with specific knowledge of the deliberations.”

Professor Campos, writing at Salon today, says that Chief Justice Roberts crafted much of the dissent in his chambers in April and May, before he changed his position and sided with the liberal wing.  ”Only the last portion of what eventually became the joint dissent was drafted without any participation by the chief justice,” Professor Campo writes, citing a “source within the court with direct knowledge of the drafting process.”

He goes on,

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.

Who to believe? Lyle Denniston, a perfect mediator for this dispute, spills his thoughts at SCOTUSblog. Denniston’s post doesn’t mention Campo’s story, but he casts doubt on the CBS report.

First, Denniston says, the story implies the joint dissent was drafted after Chief Justice Roberts’s purported switch. But Denniston finds “one telltale contradiction of that possibility.”

On page 25, the dissenters say that, if the ruling in favor of the mandate were based upon the Tax Clause, that ”would force us to confront a difficult constitutional question,” but it then added that “we have no need to address the point.”  The point is whether the tax was, in constitutional terms, a “Direct Tax.”  But, unaccountably from the language in the dissent, Roberts’ opinion does directly confront that difficult question, and decides that the penalty associated with the mandate is not a Direct Tax, but is a tax nonetheless.  That conflict makes the supposed sequencing of the dissent and the Roberts opinion somewhat doubtful.

There is another problem, Denniston says.

Again on page 25, the dissenters say that the Direct Tax issue is one that “deserves more thoughtful consideration” than it was given in the briefs by the government and its supporters.  It does not mention that Roberts dealt with it, but at the close of the dissent, a few paragraphs that seem to have been added late in the process do dispute Roberts on the Direct Tax issue, suggesting that it was decided “with inadequate deliberation.”

If what turned out to be the dissenting opinion were in fact the majority opinion at some point, “there would have been no occasion to comment on a Roberts-for-himself-alone opinion,” Denniston says.

And then there’s the tone of the dissent. It is written in “a straightforward, judge-like tone with very few of the typically harsh thrusts” that are typical of Justice Scalia’s dissents. But perhaps that’s the appropriate tone if the justices are trying to convey that their chief is, for the purposes of this case, dead to them.

LBers, we also direct you to Volokh Conspiracy, where law professor Orin Kerr has been posting on this topic all day long.

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