Did Roberts flip his vote at the 11th hour?

Or at least at some point?

The case that he did is made here:

Further, a couple weeks ago, people reading between the lines of a speech Ginsburg gave thought she was hinting (probably unintentionally) that she was writing a dissent:

Note I am not sure it matters one way or another. The justices can change their minds if they want. I am seeing some conspiracy theory stuff from conservative blogs that someone, somehow, leaned on Roberts to get him to change his vote. If so that would be news but so far I see no evidence for it beyond him upholding the ACA.

Eh, I thought people trying to read into Ginsburg’s statements were stretching pretty far.

The use of the word “dissent” in the actual dissent to refer to the majority opinion is a little more suggestive. But then, its hardly difficult to imagine a SCOTUS or clerk writing “dissent” when they meant “majority”, especially as they apparently had a busy term.

Does the Federalist Society have provisions in its by-laws for excommunication?

They will most likely have to go to extremes…the bell, book and candle treatment WITH a large framed picture of Reagan. It’s the only way to be sure…


The real smoking gun seems to be in Justice Thomas’ opinion. The guy from SCOTUSblog said he “couldn’t account for it”. The thing about calling Ginsberg’s dissent a dissent wasn’t so much a problem, because of the fact that she WAS in the minority for arguing that it could be regulated under the commerce clause, so in that sense, she was issuing a dissenting opinion.

But, “DeLong pointed out on his popular blog that in Justice Clarence Thomas two-page note on the dissent, he refers to the conservatives’ dissent as the “joint opinion” instead of the “joint dissent.”” Seems pretty damning to me.

Well, lets see here. I could pretend I know what you are talking about, and nod my head knowingly, with a chin stroke. Or reveal myself as a legal ignoramus and say “Huh?”

OK, made up my mind.


SCOTUS clerks don’t have access to “search and replace”?

I think what he’s getting at there is that the conservative SCOTUS members had a more, um, scripted response (i.e. they already knew what they were going to do, and they were planning to do it in lock step…as opposed to the liberal SCOTUS members who obviously were just winging it and going with their gut feelings on all of this. Obviously, no one got Roberts the memo :p). At least, that’s what I THINK he was getting at there.


Eh? I think he just means that Thomas would refer to a joint opinion on the losing side as a “joint dissent”. But since he doesn’t do that here, presumably he wasn’t on the losing side when he wrote the opinion, but became so when Robert’s changed sides at the last moment.

Well, tells you what I know then (which is just about nothing on this topic, let alone most topics). I read it completely differently.


This is exactly it. There is NO reason that he would call it what he did, whereas the ginsberg thing was an actual dissent (over whether or not they could uphold the law under the commerce clause).

A lot of people are pointing to Scalia’s writings constantly referencing Ginsberg’s dissent as evidence for a Roberts’ switch, but that’s not really true. She only offered a partial concurrence, and her opinion on the commerce clause was a dissent.

Thomas, however, in referencing the conservative’s dissent as the “joint opinion” means he honestly thought that it was the opinion of the court, not the dissent.

Roberts almost assuredly switched his vote last minute.

It would be interesting for the history books if so, but would it actually have any real world relevance?

I guess it could mean presidents even more closely vet their nominees, if that’s even possible, thus politicizing even more a process that only suffers by it.

On the other hand, Roberts may have just lifted the Court above an increasingly mucky display of partisanship in the last place we can afford to have it. Roberts just earned respect from me (for whatever that’s worth) that I doubted he’d ever do. His opinion could, some day, be viewed as a master stroke.

Not really. Whether he knew he would vote to uphold immediately or changed his mind in the last few weeks, the result is the same. I do think there might be some very good books written about this ruling in the years to come and the books will be better if the final vote was that dramatic. :wink:

He certainly got a place in US history books all to himself.

As an aside, from far away it feels very odd that judges could or would be so politically partisan - so party political. It’s not even their job before they do this job, how come they suddenly get to affect the direction of a nation via their own political prejudices when their whole career has apparently been based on making rulings based on the weight of legal argument and only the weight of legal argument … It seems really very weird and inappropriate.

Political SCOTUS decisions are hardly a new development. Justice (John) Marshall wrote an entire opinion on the merits in Marbury v. Madison establishing the principle of judicial review. The opinion need not have addressed any of that stuff, because the Court had already determined that it did not have jurisdiction (because Congress did not have the power to expand the court’s original jurisdiction in the 1789 Judiciary Act).

In the normal course of events, a court- including SCOTUS- that finds it doesn’t have jurisdiction won’t rule on the merits of the case. Marshall knew that Jefferson would simply ignore the Court if he found in Marbury’s favor, so he crafted an opinion that expanded the power of SCOTUS and which Jefferson would not oppose.


Not to single you out—you’re not even the only person here to have said something like this. Over at 4chan there’s plenty of people going on about what a landmark case this is. I’d imagine it’s like this everywhere, but sdmb and 4chan eat up too much of my time.

I’m reading through the case and I have to admit I have yet to find anything earth-shattering. What about this case will radically alter the future of jurisprudence? Question open to all. I know it feels all big n’ stuff because of the current political atmosphere but that makes the bill signed into law a huge deal, not this court case.

There’s no way to predict how important the decision is. It’s unlikely that Congress will pass any similar legislation in the short term.

It is this in particular that feels so utterly bizarre from this side of the Atlantic. Over here the idea of conservative, labour or lib dem judges is utterly alien.

I think the biggest judicial legacy is actually the Commerce Clause ruling in Robert’s opinion. Congress has had some pretty wide latitude over the years. The Court, in this ruling, set at least some limit on that.