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Free Market
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NedStark wrote: http://www.volokh.com/2012/06/28/was-scalias-dissent-originally-a-majority-opinion/

"Scalia’s dissent, 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. 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."


I still believe that it is likely that there was insider trading that drove the price of this contract from $7-$9 in the past month. However, in the two days before the decision the price fell on substantial volume.

If the suspicions about Roberts changing his vote at the last minute are true then this only reinforces the intrade's value as a predictive market even though this time the bettors 'got it wrong.'



Edit to add here is an article that makes it clear that Roberts switched sides after the opinions had been written:

http://www.foxnews.com/politics/2012/06/29/did-roberts-flip-clues-in-dissent-suggest-court-was-initially-set-to-strike/

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GAW838
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It's not remotely likely, but they could of course take another case and strike down the mandate. The contract did not specify a particular case, and some thought the matter would never reach the SCOTUS.
WestSayid
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At the last minute? Weren't the opinions written back in like May?

This is just one of those "My side lost when I feel our victory should have been certain, so I'm going to go into a death-spiral of conspiracy-theorizing."

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Free Market
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WestSayid wrote: At the last minute? Weren't the opinions written back in like May?

This is just one of those "My side lost when I feel our victory should have been certain, so I'm going to go into a death-spiral of conspiracy-theorizing."


If you read or even skim the dissenting opinion it is pretty apparent that it was initially written as a majority opinion. Most obviously, they refer to the other opinion as "the dissent."

I don't know what the justices threshold is for amount of time for them to say 'screw it, I'm not going to bother editing my opinion' (I could certainly see Scalia mailing it in) but I would imagine that if Roberts hadn't flipped in the last week that they would have had time to have their clerks edit their opinion.
ammoniad
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Free Market wrote: If you read or even skim the dissenting opinion it is pretty apparent that it was initially written as a majority opinion. Most obviously, they refer to the other opinion as "the dissent."


Absolutely. Unless Scalia intentionally wrote the opinion to deceptively give that impression (not impossible, BTW), it was definitely originally written as a majority opinion. What is very likely though, is that Scalia started writing his opinion immediately after the oral arguments (probably sketched out in detail well before the arguments) assuming he'd win, and it just didn't get edited out afterward (keep in mind the opinions are 200-page documents of extremely dense legalese, and there isn't exactly a huge editing staff at the Supreme Court).

Free Market wrote: I don't know what the justices threshold is for amount of time for them to say 'screw it, I'm not going to bother editing my opinion' (I could certainly see Scalia mailing it in) but I would imagine that if Roberts hadn't flipped in the last week that they would have had time to have their clerks edit their opinion.


Nope. Bear in mind, as I said above, those opinions are nearly 200 pages long, and there is no editorial staff at the Supreme Court. The justices have like 3-5 clerks apiece, and they have much more important work to be doing than editing legally irrelevant prose.
Roothlus
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ammoniad wrote:
Free Market wrote: If you read or even skim the dissenting opinion it is pretty apparent that it was initially written as a majority opinion. Most obviously, they refer to the other opinion as "the dissent."


Absolutely. Unless Scalia intentionally wrote the opinion to deceptively give that impression (not impossible, BTW), it was definitely originally written as a majority opinion. What is very likely though, is that Scalia started writing his opinion immediately after the oral arguments (probably sketched out in detail well before the arguments) assuming he'd win, and it just didn't get edited out afterward (keep in mind the opinions are 200-page documents of extremely dense legalese, and there isn't exactly a huge editing staff at the Supreme Court).

Free Market wrote: I don't know what the justices threshold is for amount of time for them to say 'screw it, I'm not going to bother editing my opinion' (I could certainly see Scalia mailing it in) but I would imagine that if Roberts hadn't flipped in the last week that they would have had time to have their clerks edit their opinion.


Nope. Bear in mind, as I said above, those opinions are nearly 200 pages long, and there is no editorial staff at the Supreme Court. The justices have like 3-5 clerks apiece, and they have much more important work to be doing than editing legally irrelevant prose.


Dissenting opinion are legally irrelevant prose? lolok.
NedStark
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ammoniad wrote:
Free Market wrote: If you read or even skim the dissenting opinion it is pretty apparent that it was initially written as a majority opinion. Most obviously, they refer to the other opinion as "the dissent."


Absolutely. Unless Scalia intentionally wrote the opinion to deceptively give that impression (not impossible, BTW), it was definitely originally written as a majority opinion. What is very likely though, is that Scalia started writing his opinion immediately after the oral arguments (probably sketched out in detail well before the arguments) assuming he'd win, and it just didn't get edited out afterward (keep in mind the opinions are 200-page documents of extremely dense legalese, and there isn't exactly a huge editing staff at the Supreme Court).

Free Market wrote: I don't know what the justices threshold is for amount of time for them to say 'screw it, I'm not going to bother editing my opinion' (I could certainly see Scalia mailing it in) but I would imagine that if Roberts hadn't flipped in the last week that they would have had time to have their clerks edit their opinion.


Nope. Bear in mind, as I said above, those opinions are nearly 200 pages long, and there is no editorial staff at the Supreme Court. The justices have like 3-5 clerks apiece, and they have much more important work to be doing than editing legally irrelevant prose.


This was a huge case. The justices aren't going to just phone it in. The most likely explanation is that the conservative justices wanted to give the impression whether true or not (I think it's true) that Roberts changed his vote. To say that the clerks wouldn't have time to correct the opinion is insulting to the clerks. The justices clearly wanted the dissent as it was written.

Lawyers will be analyzing every word in the opinions (the majority, concurrence, and dissent) for generations. The justices arent going to say screw it because they don't want their clerks to work too hard.

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LongOdds
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The dissent refers to Ginsburg dissenting on the ACA mandate being covered under the commerce clause (Roberts said ACA is not viable under commerce clause, only as a tax).

I don't think Roberts is so weak as to change his vote. That's a ridiculous conspiracy theory put forth by those angry at the outcome. He voted the way he did because he looked at the legality of the mandate in an objective, detached manner, instead of taking the emotional route and casting a vote based on whether or not he agreed with the policy.

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ammoniad
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Sorry folks, I was drunk last night when I wrote my previous comment, and reading it now I'm seeing how silly and ill-thought it was.

I didn't mean to say that the entire dissenting opinion was "legally irrelevant prose" (although, in many ways, in fact it is); however, whatever terminology the author used to refer to the 'other' opinion is, from a legal standpoint, irrelevant... it doesnt matter one whit from a legal standpoint whether Scalia called the other opinion "the dissent" or "the majority opinion" or "my dog's left foot"; he can call it whatever he wants, the term he uses doesn't have any legal impact.

That said, Ned makes a very good point about the historic nature of this ruling, and for that reason alone (despite the legal irrelevance of the language used), he's right that I'm sure both the justices and the clerks would want to get it right. So then it would seem likely that Scalia's choice of words was intentional.

So that leaves us guessing why he used the words he did. It is very possible that Long Odds is correct above that he was referring to the conflict between Roberts's and Ginsburg's treatments of the individual mandate under the Commerce Clause.

It is worth pointing out here that a reference to the majority opinion as "the dissent" would not actually be technically wrong (the other opinion certainly does dissent from his own); it certainly isn't the traditional nomenature used, but it may not technically be wrong. Therefore, Scalia may simply just be denigrating the majority opinion with his language, showing his disdain for it (which would certainly fit his personality).

I'm not sure anyone not directly involved can divine what the guy was thinking. It may have to wait until somebody writes the book about the "insider's account" of the SC's consideration of this case...
But my guess is that Long Odds has it right.

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Meganostradamus
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I had no idea how the Supreme Court would decide this case. But now I'm ready to make another far-reaching prediction: The Supreme Court decision to uphold the penalty as an expression of the taxing power of the government means the final death knell for anyone's dream of a single-payer system based on the British, Belgian, or Canadian models (et al.). Now that the government can direct citizens to buy any commodity, there will be no end to the combinations and permutations of Obamacaresque approaches to health care and a host of other problems.

Liberals (and I say this with all due respect--if you are a Liberal, I imagine you would agree with me) are intelligent conservatives. Liberals believe in market-based solutions and generally agree with the international neo-liberal agenda, but with about twice the vision as a traditional conservative. Not all Liberals feel so sanguine about market-based solutions and the neo-liberal agenda, but those who do not still support candidates whose dedication to same never wavers or abates.

Liberals, generally speaking, prefer a market-based solution like Obamacare to a rationalized government national plan. I don't know why. The arithmetic doesn't make sense. If insurance companies run the health financing system for a profit, then the profits they take would naturally be subtracted from the amount of money available to actually pay for health care. Same goes for all the expenses associated with proliferating redundant bureaucracies, regardless of the invisible hand of 'competition'.

If Obamacare had gone down in flames, the only pinball left in the arcade game would have been single-payer. The problem with the health-care system would have ballooned rapidly, especially in this economy, and the government could have felt forced to address the issue decisively and economically. That's never going to happen now. When the federal treasury dries up, and the general working population has to choose between meeting their obligation to the government to buy a $300-$400 health insurance policy or buy gasoline at whatever exorbitant price waits in the future, they're going to buy the gasoline. Congress will cast about for another solution, but I imagine it will involve this new power to create private transactions out of thin air.

Anyone checked on American weather this month? Everything is rolling downhill, as far as I can see.

Cheers--"It's Every Man For Himself!"
NedStark
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LongOdds wrote: The dissent refers to Ginsburg dissenting on the ACA mandate being covered under the commerce clause (Roberts said ACA is not viable under commerce clause, only as a tax).

I don't think Roberts is so weak as to change his vote. That's a ridiculous conspiracy theory put forth by those angry at the outcome. He voted the way he did because he looked at the legality of the mandate in an objective, detached manner, instead of taking the emotional route and casting a vote based on whether or not he agreed with the policy.


The way the word "dissent" is used throughout Scalia's paper, it refers to arguments advanced both in the majority and concurrences. Perhaps Ammoniad is right about him denigrating the majority by using a nontechnical meaning of "dissent."

Also, Justices change their votes all the time. Every Justice records the votes of other Justices in their own little books during the first round of voting (usually within days after oral arguments). Sometimes they release these records after they retire. Based on the records that have been made available, it appears relatively common for Justices to change their votes between oral arguments and publication of the final opinion.

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dudeabides
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"It's difficult for me to accept the view that the individual mandate can be considered to be a valid tax, but having read the opinion, well, it's nuanced, well reasoned, and established thoroughly on precedent. I'd say anyone opinionated about today's decision might want to sit down with a cup of coffee and get into the Court's literature on it."

Nope. The SC had only previously invalidated laws under the Commerce Clause under the theory that the at issue regulation's connection was too attenuated to interstate commerce to stand (Violence Against Women Act and the a prohibition to carry guns near a school). Roberts conducted none of that analysis and create entirely new law, by distinguishing "inactivity" from "activity," and issue that was never considered by the SC before. Maybe this makes sense to you, and that's fine, but it's not supported by any precedent.
WestSayid
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Ginsburg's separate opinion is the only one that I can chew through. We need more Justices like her.

I especially like this part.

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetar­ ian state as a credible reason to deny Congress the author­ ity ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”).


And this:

To bolster his argument that the minimum coverage provision is not valid Commerce Clause legislation, THE CHIEF JUSTICE emphasizes the provision’s novelty. See ante, at 18 (asserting that “sometimes the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent for Congress’s action” (internal quotation marks omitted)). While an insurance-purchase mandate may be novel, THE CHIEF JUSTICE’s argument certainly is not. “[I]n almost every instance of the exer- cise of the [commerce] power differences are asserted from previous exercises of it and made a ground of attack.” Hoke v. United States, 227 U. S. 308, 320 (1913). See, e.g., Brief for Petitioner in Perez v. United States, O. T. 1970, No. 600, p. 5 (“unprecedented exercise of power”); Sup- plemental Brief for Appellees in Katzenbach v. McClung, O.T. 1964, No. 543, p.40 (“novel assertion of federal power”); Brief for Appellee in Wickard v. Filburn, O. T. 1941, No. 59, p. 6 (“complete departure”). For decades, the Court has declined to override legislation because of its novelty, and for good reason. As our national economy grows and changes, we have recognized, Congress must adapt to the changing “economic and financial realities.” See supra, at 14–15. Hindering Congress’ ability to do so is shortsighted; if history is any guide, today’s constriction of the Commerce Clause will not endure. See supra, at 25–26.


BIFF! POW! KA-ZOK!

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dudeabides
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What I like best about Ginsburg's analysis is how utterly conventional it is. It's telling that Roberts' opinion doesn't even mention the rational basis test. Remember, three years ago, no one thought of the mandate as anything but constitutional. It was, afterall, the brainchild of the Heritage Foundation.

Lost in all this is that states can do all of the awful things that Roberts, Scalia et al. are so concerned about. Why aren't we concerned about California mandating that all of its citizens buy broccoli? Because democracy itself acts as a check to stupid laws like these- any lawmaker stupid enough to enact those sorts of laws will be run out of office really quickly.

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Roothlus
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dudeabides wrote: What I like best about Ginsburg's analysis is how utterly conventional it is. It's telling that Roberts' opinion doesn't even mention the rational basis test. Remember, three years ago, no one thought of the mandate as anything but constitutional. It was, afterall, the brainchild of the Heritage Foundation.

Lost in all this is that states can do all of the awful things that Roberts, Scalia et al. are so concerned about. Why aren't we concerned about California mandating that all of its citizens buy broccoli? Because democracy itself acts as a check to stupid laws like these- any lawmaker stupid enough to enact those sorts of laws will be run out of office really quickly.


By upholding it under Congress' power to tax & spend, rational basis review is satisfied implicitly (maintaining govt revenue is a legitimate govt interest and taxing is rationally related to those ends). So I'm not too surprised that he didn't bother with that.

I agree with your second point regarding broccoli. It's nothing more than a politically charged slippery slope argument, but without the slippery slope. A true slippery slope only results when, because of event X, event Y is more likely to occur . There's absolutely no reason why Congress passing obamacare (event X) makes it more likely that Congress would require us to eat broccoli (event Y).

This is still sound logic under Roberts' opinion. Congress has always had the power to tax and spend. If it decided to do so, it could constitutionally tax 90% of all income. But it would obviously never do so because it would destroy the economy.

It's political gamesmanship at its worst and I'm surprised the justices gave the "brocolli argument" the time of day
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