This is a little off topic for my blog but I found it interesting. With the Supreme Court holding that the individual mandate was a constitutional exercise of congressional power, many observers have noted some interesting questions. I must admit, when I began reading the dissent I noticed a few things. First, Justice Scalia writing the dissent (joined by Justices Alito, Kennedy, and Thomas) refers to the opinion written by Justice Ginsburg as “the dissent”. Typically Scalia in a dissent would attack the majority opinion first and perhaps address concurring opinions more briefly. Some commentators have noted that perhaps the four dissenters left these typos in as a key to show that Chief Justice Roberts had changed his vote. Second, the dissent goes into great detail in dealing with the issue of severability, which is not necessary because the majority found that mandate was constitutional – thus no need to address whether the provision could be severed from the law. Further, many have assumed that Scalia wrote the dissent however, the dissent is unsigned.
There is a competing theory that the reason the opinion is unsigned is because it was originally drafted by Chief Justice Roberts when he joined the four other Justices. When Chief Justice Roberts left, and joined the other wing, the dissenters kept much of his opinion intact. To further bolster this contention, the dissents response to Chief Justice Roberts’s opinion is most squarely addressed at the end of the dissents opinion – leading to the impression that it was added late after the majority of the opinion had already been written.
There is some speculation that Chief Justice Roberts changed his vote to prevent the Court from being viewed at too political. If that was the case, it most certainly was a political decision – where perception or political acceptance of the opinion trumped the Constitution. Of course, this is all speculation and there is only circumstantial evidence to support it. It may be years and years before we find out what happened or we may never know. In any case, it is an interesting topic to think about.