It has been widely reported that Chief Justice John Roberts switched his vote to uphold the Affordable Care Act. Now a new report says that Roberts didn’t just switch his vote, but he actually wrote both his own opinion upholding the law and most of the dissenting opinion opposing it.
Salon‘s Paul Campos reports that he has been told by an anonymous source that Roberts wrote “most of the material in the first three quarters of the joint dissent,” and that only the last portion of the dissent was written by the conservative bloc of Justices, Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas.
Campos’ source contradicts a report by CBS News’ Joan Crawford, which said that the four conservatives on the court had written the unusual dissent in NFIB v. Sebelius because “conservatives no longer wished to engage in debate with him.”
Instead, Campos’ source says that this is “pure propagandistic spin,” meant to deflect from the oddity of the dissent, which reads more like a majority opinion than a dissenting one.
While it’s impossible to know whether Campos’ source or Crawford’s sources are more trustworthy, the report does confirm that Roberts switched his vote, saving the Affordable Care Act rather than voting to embrace the “Constitution in exile” doctrine. It’s also a mystery why the conservatives on the court would keep Roberts’ opinion even after the Chief Justice switched his vote. Perhaps they felt that they could win Roberts back using his own words. If that was their gamble, it failed.
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