It’s now close to 4 PM and it looks like I read El Nino’s mind. Over at the Volokh Conspiracy, David Bernstein writes as follows:
Scalia’s dissent [in today’s decision largely upholding the Affordable Care Act], at least on first quick perusal, reads like it was originally written as a majority opinion (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate.
Afterwords
Bernstein’s “unidentified circles,” whatever they are, are just a device to allow him to allege, without attributing anything to anyone, least of all himself, that President Obama’s gang of neo-Kenyan anti-colonialist hooligans put the arm on our weak-willed Chief Justice and bent him good. “Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill.”
Excuse me, Dave, but the dude feeding the rumor mill is you. In fact, it looks like you’re the one who built it. My own guess is that Roberts did bail, not because of threats from the President but his own feeling that, as heir to Bush v. Gore, absolutely the worst Supreme Court decision in history, he could not, with a straight face, resurrect the “Gang of Five,” with himself standing in for William “Fat Tony” Rehnquist, and overturn such a major piece of congressional legislation.
