The Majority Opinion that Became a Dissent

If you had told me before the day started that John Roberts and Anthony Kennedy would have penned differing opinions on the Obamacare case, and that I’d be siding with the latter’s opinion, I would have said that you were nuts. Alas, it appears that John Roberts is the new Anthony Kennedy.

Ed Whelan has speculated that Chief Justice Roberts changed his vote at the last minute, and therefore the dissenting opinion was originally the majority opinion. He has a follow-up post that posits another theory supporting that notion, which also explains how that could be logistically possible. Having now fully digested the dissenting opinion, I am just about 99 percent certain that John Roberts did indeed change his vote, and that the dissenting opinion was the majority opinion until the Chief Justice changed his mind.

Frankly, the dissent just doesn’t read like a dissent at all. As Whelan points out, the dissenting opinion repeatedly alludes to Justice Ginsburg’s opinion as the dissent. In fact, the dissenters barely alludes to the Chief Justice’s opinion at all until the very end. The final couple of pages are a scathing attack on the majority’s opinion, heretofore unmentioned. It certainly seems like the dissenting Justices felt jilted by the Chief Justice, thus the unusually harsh rhetoric of the final few paragraphs of the dissent. Another sign that the dissenters were in the majority comes on the second page:

Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

That clear principle carries the day here.

But that principle didn’t carry the day in the end.

Much of the dissent echoes what Roberts wrote in his decision. That’s because the dissenters were on the same side as Roberts on all but the issue of the taxing power. And it is here where the point out the absurdity of the Court’s decision.

 But we cannot rewrite the statute to be what it is not. “‘“[A]l- though this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of  perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.

Later on in the dissent, the four assert that “to say the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”

The dissenters also point out the absurdity of calling it a tax in order to uphold the mandate, but not a tax when ruling on the Anti-Injunction Act.

What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.

Perhaps John Roberts spent some time at Hogwarts.

The dissenters also smack down the government and Roberts’ creative solution in dealing with Medicaid expansion, and a provision that a 7-2 majority to be found unconstitutional as applied under ACA.

We should not accept the Government’s invitation to attempt to solve a constitutional problem by rewriting the Medicaid Expansion so as to allow States that reject it to retain their pre-existing Medicaid funds. Worse, the
Government’s remedy, now adopted by the Court, takes the ACA and this Nation in a new direction and charts a course for federalism that the Court, not the Congress, has chosen; but under the Constitution, that power and authority do not rest with this Court.

So why would Roberts suddenly get cold feet? I believe the answer lies early on in the Chief Justsice’s opinion, on pages 5-6 where he discusses deference to the Legislature. It has been widely accepted that the Chief Justice has a conservative temperament (not necessarily referring to ideology here). He certainly does not share Clarence Thomas’s desire to overturn decades of jurisprudence (further evidence of which is demonstrated in his own two page dissent, where he re-iterates his voice in the wilderness approach to the Commerce Clause). He is also milder in his approach than Alito and Scalia, and on this issue, even Anthony Kennedy.

I believe that Roberts saw the Court heading down a path where it was set to strike down the entire Affordable Care Act, and not just the individual mandate. That was a bridge too far, therefore he devised an out where he could side with the Court’s conservatives on the commerce clause issues, but also keep the health care act alive.

In making a decision aimed at having the Court avoid entering the partisan fray, Chief Justice Roberts only managed to get the Court involved even deeper into the political morass. The dissenting opinion forcefully points out the folly of the Chief Justice’s approach, and I can’t help but think that this is a rather pointed, public rebuke of the Justice. I’ll quote extensively from the closing lines of the dissent, because it happens to be completely on target.

The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.

The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional  question (what is a direct tax?) that the Court resolves  with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an  unaccustomed strain upon the Union.

Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is to be introduced at all, it should be by Congress, not by the Judiciary. The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

The coda to the dissent is even starker, and again leaves the impression that the four dissenting justices were essentially left at the altar by the Chief Justice.

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this  case involves are protections of structure. Structural  protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less  obvious a connection to personal freedom than the provisions of  the Bill of Rights or the Civil War Amendments.  Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers  considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

The disappointment just drips right off the page. It’s a feeling shared by many readers.

36 Responses to The Majority Opinion that Became a Dissent

  • anzlyne says:

    This is a brilliant and thoughtful post and I love it. But I couldn’t help but not the double meaning at the spelling here-

    “left at the alter by the Chief Justice”

  • Donna V. says:

    If Roberts is such a spineless jellyfish, he should not serve on any court, anywhere.

    Honestly, I feel hatred toward the man. And yes, I recognize that that is a terrible sin, and I am praying for the hate to go away. But at the moment, it is difficult for me to feel any other emotion for the man who shoved a knife into the back of the USA today. And when I think that he is a young man and will be Chief Justice until he dies or retires, I feel utter despair for our future (and yes, I know despair is also a sin). It’s funny – I frequently feel anger toward and contempt for Obama, but I don’t hate him. I recognize that he is following his own principles, twisted though they may be. But Roberts – a man who has apparently caved because he couldn’t stand the heat? His legacy? His rightful place will be next to Justices Taney (Dred Scott) and Holmes(the government has a right to sterilize the mentally handicapped because “3 generations of imbeciles are enough.”

    But, hey, on the upside, I’m sure Roberts will get lots of invitations to chi-chi G-town parties now!

  • Mark Noonan says:

    On the other hand, by returning the issue to the political sphere, Roberts has put it back where it belongs. Sure, I wanted the mandate struck down so I could spike the ball and gloat…but the reality is that if the mandate had been found unconstitutional then the liberals just would have brought it back under different guises at a later date. Heck, even if struck down you have to figure Obama would continue to implement it by regulatory fiat (DREAM Act, anyone?). Upon reflection, I wish we hadn’t even brought it to the courts – the proper place for this battle is in the court of public opinion. Either we can convince a majority to repeal ObamaCare, or we can’t. If we can, then we’ve won the war – if we can’t, then striking down this particular law would do no long term good.

    Take this, my friends, as a blessing – we are not challenged to work with a will and, with our trust given to God, do what we know is the right thing.

  • Mark Noonan says:

    Think, for a moment, just how dead gun control is – sure, some court decisions were helpful but, at the end of the day, it was an awakened American people determined to preserve their right to bear arms which made the issue politically toxic…and now the Courts follow the people on the matter. That is how not just Obama Care but all manifestations of socialism must be defeated…

  • Sandra says:

    I am reminded of the story about a bird that did not fly south for the winter. Stuck in a barnyard, nearly frozen to the ground, accepting fate that nothing was worse and it would die. A cow walked by and dropped a load of “out-put” on the hapless bird. But the dung was warm and there were undigested seeds. The bird was warmed, ate and then started to sing. That was when a barn cat came along and started to dig. Happy to be free the bird sang and stretched. And was promptly killed and consumed by the cat.

    Moral of the story, not everyone that craps on you is your enemy, not everyone that gets you out of s@#% is your friend, and if you are buried and happy, keep quiet about it.

    I do not believe that Chief Justice Roberts is our “enemy” nor do I think he is another Chamberlain. It was left to the voters to remedy the action of this Act of Congress. Otherwise from now until the end of the USA there will be the constant court battles to undo what was done by a prior administration.

    It can be done, through the ballot box and our elected Representatives, not from appointed judges that many of whom owe more allegiance to a political ideology than to justice.

  • Donna V. says:

    Ah, yours is the calmer, wiser take on things, Mr. Noonan. I was so bitterly angry today and felt so betrayed….I pray you are right.

    I am a Burkean conservative, and as such, am frequently disgusted with Republicans professing to hate big government and yet voting for big government as soon as they get nice offices in DC. I hope for and fully expect Romney and a GOP Congress to strike down Obamacare. If they don’t, well, I will be done with the GOP. We will end our days as slaves to the Almighty State and there is nothing the little people like me can do about it.

    A few months ago, in confession, a priest reminded me to put not my trust in kings – or politicians, or hopped up lawyers (which is what Roberts is)….Yes, he was right.

  • Donna V. says:

    BTW, it takes a full 10 minutes before I can download TAC and probably another 5 before I can access the comments section. I have showered and blown-dried my hair in the morning- and then I return to my computer and find TAC is still not downloaded. I find it the slowest site in the Christian world :-) It is the number one reason why I rarely comment here- does anybody else have similiar difficulties?

  • simonne says:

    I did worry about Roberts as I’ve been reading how he doesn’t want his court to look too political but I didn’t think he would actually go this far. It was like he was reaching for something to uphold this law & he found it in taxes. I’ve lost total respect for this man. We need healthcare reform but not this one. I’m a moderate conservative but I was very angry & I’m totally disliking Roberts right now as he changed America as we see it. Obama is changing this country & I won’t even recognize it if he remains president. I’m just sad.

  • Paul Zummo says:

    Mark, it isn’t up to the Court to decide issues based on the politics of the situation. Roberts’ attempt to play John Marshall and get the Court out of a political jam was unnecessary. What exactly would have been the fallout if the Court struck down Obamacare? President Obama and the Democrats would have complained. So what? A majority of the population would have supported the outcome, and even if a majority did not that is irrelevant. As the dissenters correctly pointed out, the Chief Justice’s attempt to the get the Court out of politics only entangled it further. In the end, the Court made law. How is that an example of the Court returning the issue back to the political sphere. With this decision the Court became part of the political sphere.

    All that being said, I agree with what others have said in terms of dialing back our emotions. We are not in Nazi Germany, and the tanks aren’t going to start rolling into our Churches. This is a terrible defeat for the rule of law, and I think also a worrying sign that we’re still two votes away from repealing Roe. But we need to take it down a notch.

  • Indeed. Additionally I view this as a Pyrrhric victory for Obama, as this decision will be a millstone around his neck during the remainder of the campaign. Too many conservatives become disheartened too easily when there is every reason to think that this decision is a Godsend politically.

  • Joe Green says:

    Don, you’re ever the optimist, which I admire. Of course, I always see a half-full glass. The rosy reaction is like finding good news in a recession by reading a headline: “Mafia forced to lay off 6 judges”

  • Paul Zummo says:

    Another thing that irks me about the rationalization of this decision, as seen in Charles Krautahammer’s column:

    Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.

    This is akin to George Bush avoiding the question of the constitutionality of McCain-Feingold and letting the Courts decide. All three branches of the government have the equal authority and obligation to decide upon the constitutionality of legislation before them. It is an abrogation of duty, not a sign of political pragmatism, to simply punt the matter away.

  • I try not to be a pessimist or an optimist when it comes to politics Joe but to call ‘em like I see ‘em. Many conservatives were saying that the game was up when Obama got elected in 2008. 2010 demonstrated how out of touch that view was. American political history is a series of reactions and counter-reactions. Obama went too far to the Left, and he reaped a political whirlwind in 2010 and the same is in store this November.

  • Chip Jones says:

    I agree with Donald. The President has just been made a liar, at least on the subject of a tax increase (which was a large part of the objection to the ACA in the first place…who is going to bear the cost?). I saw an ABC News blog link this morning to the interview I which he absolutely rejected the notion that the individual mandate was a tax. Guess Mr. Constitutional Law missed that class.

    No, I think we need to give this a few days to unfold. The analyses I’ve read aside, I believe Justice Roberts may have given those who oppose the law exactly what they need to fit it… He avoided giving the President. White martyrdom on the subject, and he exposed the law for what it is: a massive tax increase on those least able to afford it.

  • WK Aiken says:

    TAC does load slowly – probably a side-effect of the litany of links on the side.

    Dick Morris is saying the same thing Krauthammer says, which will probably be the theme of many variations in weeks to come. The November’s gonna be a slugfest. Hopefully Holder’s out of the SecState chair so we don’t have Black Panther goon squads threatening polling places.

    Question – Supposing a GOP quash and concomitant numerical ability, what’s the chance/point/P&L for an attempted Constitutional amendment expressly forbidding Congress to tax non-activity? I would not know how to word it properly, but, could or should such a thing be considered?

  • Paul Zummo says:

    Good article from Jonah Goldberg today. Ignore the misleading headline – he really takes Roberts to the woodshed.

    what’s the chance/point/P&L for an attempted Constitutional amendment expressly forbidding Congress to tax non-activity?

    Somewhere between slim and none. The GOP will almost certainly have legislative majorities in both Houses of Congress, but not enough to get such an amendment through.

  • Bob T. says:

    “Politics and Culture from a Catholic Perspective?” I don’t think so. I am Catholic, but this blog ‘s authors and commenters certainly do not speak for me or, I suspect, for a majority of Catholics. Alhough I would have preferred a single-payer system, I agree with the purpose and intent of the ACA, and applaud the Supreme Court’s action. There will be no tax assessed against anyone if people who have enough income to pay federal income taxes do the individually and socially responsible thing and buy health insurance. The tax is imposed only on those who do not, and for whose healthcare either health providers or the rest of us end up paying.

  • Hank says:

    Paul:

    If yesterday you were “just about 99 percent certain that John Roberts did indeed change his vote,” the following excerpts from yesterday’s dissents should make you just about 100 percent certain. Make note of the reference to “Chief Justice Roberts” in Justice Ginsburg’s dissent and “we” in the joint dissent:

    From Justice Ginsburg’s dissent:

    In failing to explain why the individual mandate threatens our constitutional order, THE CHIEF JUSTICE disserves future courts.

    From the joint dissent:

    The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying
    the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government.

    For what it’s worth, I’m 100% certain the Chief Justice switched sides at the last minute, and I’m substantially certain he did so on the misplaced belief he was preserving the integrity of the Court by protecting it against further attacks of politicizing the judicial process. By switching at the last minute, he also gave insufficient time to what became the joint dissent to dismantle his holding that “commerce clause regulation of inactivity is unconstitutional but regulation by taxation of inactivity is constitutional” or his similarly contradictory position that, on the one hand, the penalty-for-inaction “tax” is not a direct tax because it is not akin to a Capitation which is easily susceptible to apportionment or a tax on personal property or real estate, but, on the other hand, we shouldn’t be worried that the government has just now been given the power to tax inactivity because the power to tax inactivity has been around from the founding as evidenced by . . . of course, the Capitation or poll tax which applies merely for being a citizen. I imagine with a little advance notice Justice Scalia could have put a few more barbs into the joint dissent or dissented separately.

  • Paul Zummo says:

    I am Catholic, but this blog ‘s authors and commenters certainly do not speak for me or, I suspect, for a majority of Catholics.

    While I’m sure you have your finger on the pulse of the Catholic community at large, we’ll continue to express our opinions as our Catholic faith informs us to do.

    There will be no tax assessed against anyone if people who have enough income to pay federal income taxes do the individually and socially responsible thing and buy health insurance.

    Ah, the compassionate left in action. Nobody will be punished so long as everybody does what we demand that they do in the name of social justice. There is nothing particularly “Catholic” about such an attitude, but I’m sure you will go on believing that you are more Catholic than the rest.

    Fine then.

  • Paul Zummo says:

    Hank: Good catch, and more evidence that Roberts did indeed change his mind, and fairly late in the game at that. And I agree fully with your take. Clearly Scalia and the rest were caught off guard, as evidenced by the the relative lack of attention the dissent paid to the Chief Justice’s opinion until the very end of the dissent. I’m sure Scalia would have torn into Roberts more than he did for his double-talk on the tax had he had sufficient time – note he only addresses the government as being sophists, and not the majority of the Court.

  • Mark Noonan says:

    Paul,

    Good points but now there are two things:

    1. Obama and the Democrats have to run with this horrendously unpopular law still the law of the land.

    2. Obama and the Democrats can’t point to the Evil, Wicked, Nasty, Republican Supreme Court as the source of blame for what went wrong.

    Obama carries the ObamaCare millstone around his neck in to November and the Courts are out of the political fray. I actually kind of like this outcome.

  • Mark Noonan says:

    Donna,

    A great calmness came over me as I took in the decision – all is well and its all going to be for the best. And, yes, TAC does load slowly.

  • anzlyne says:

    Would you regard a levy, confined to uncultivated land, as a tax or a penalty?

    At least that levy would be attached to property ownership; not to nothing, not to non-action. I am not saying it is a good thing, but at least there might be some reason behind it.

  • Mary De Voe says:

    God did not want His Chosen People to be governed by a king. God wanted the Israelite nation to be a nation of sovereign persons, ruled and governed by the Supreme Sovereign Being, disciplined by LOVE. Still, Israel insisted. God relented and gave them Saul, then David.
    George Washington had served two terms as President of the United States. When Washington refused a third term as president, the people wanted to crown him king. Washington absolutely refused. George Washington was truly disciplined by LOVE, a sovereign. As a sovereign, George Washington exemplified the true meaning of sovereignty for each and every person and our nation.
    Justice is predicated on intent. As the personification of Divine Justice, the perfect Justice of God, The Supreme Court for the United States of America is empowered by Divine Justice, to root out all corruption, all falsehood, all malevolence, any evil that would threaten the Liberty and the common good of each and every individual person, every citizen, every state and nation, for whom the Justices have taken an oath to preserve FREEDOM, through the United States Constitution.
    CJ John Roberts statement that it is not the Supreme Court’s job to correct our mistakes and /or crimes is simply Roberts reneging on his oath. Swallowed by atheism and secular humanism, Roberts aids and abets the establishment of these disordered aberrations as religion through which the FREEDOM of religion might be practiced by the sovereign persons who happen to be citizens, in spite of the fact that these aberrations have been thrown off by the plaintiffs, violate the Ninth Amendment, (the Ninth Amendment states that persons have rights not enumerated in the Constitution) and deny the freedom of conscience, the human being’s immortal soul, the human being’s rational soul. Without a rational soul man becomes a beast, a rapacious beast or a subject, a member of a herd to be driven and corralled. Man has already witnessed the violence and been subjected to inhumanities un-thought of several decades ago. To this John Roberts adds his imprimatur. “It’s not my job”
    Obamacare cannot be dealt with because it is not a law. Obamacare is tyranny, coercion and fraud, the establishment of a God-less society. Obamacare will have no new generation, only a new generation of flatliners.

  • Michael Paterson-Seymour says:

    Mary De Voe

    There is an inscription in the Chapelle Expiatoire in Paris, built by the Catholic community as an act of reparation for the murder of the Royal Family “in diebus illis non erat rex in Israhel sed unusquisque quod sibi rectum videbatur hoc faciebat.” – In those days, there was no king in Israel and every man did what was right in his own eyes (Judges 17:6)

    In fact, the phrase, “there was no king in Israel” recurs four times in Judges(17:6, 18:1, 19:1 & 21:25) and each time it goes on to describe some disaster or act of wickedness.

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