Friday, June 29, 2012
What Really Happened Behind The Scenes At The Supreme Court?
I spent a couple of hours reading most of the court's opinion yesterday (I have to admit that I only skimmed Ginsberg's opinion). I found a few things to be very interesting.
1) Chief Justice Roberts continually references Justice Ginsberg's writings to refute her assertions. This is not by itself unusual. As regularly occurs, the majority opinion is written, then it is sent to all Justices so they can write their dissent or other concurrences. Those opinions are then sent back to the majority opinion writer so he or she can reference the other opinions in the majority opinion. However, in this case, Roberts' strenuously refutes Ginsberg's opinions throughout the text of his own opinion. He seemed determined to ensure that there was no confusion about why his opinion is different than hers (and those who joined her).
Meanwhile, the Roberts opinion barely references the dissenting opinion of the conservative justices. This is unusual given how often Roberts references the Ginsberg decision. Typically the majority opinion goes into great effort to explain why it is right and the minority is wrong. This is especially true in a landmark decision like this one where Ginsberg rattles on for 61 pages. It is highly expected that Roberts would have wanted to address several of her assertions (especially since many are non-sequiter) if his opinion was going to be supported by the conservative justices and her 61 pages were going to be the dissent. Roberts would have wanted to be explicit why she and the other liberal justices were wrong.
It is telling that Roberts barely references the conservative dissent. He mentions it a few times, but not convincingly and not with the zeal that he attacks Ginsberg's dissent. Why? It is possible the conservative dissent was written later? Is it possible that Roberts agreed with that opinion before he disagreed with it?
2) The conservative dissent does not state who wrote it. This is also unusual. As with the Ginsberg opinion, typically an opinion is written by one justice and then "joined" by others who agree. However, the 4 conservative justices (in this case) present their opinion as a union and not as the opinion of one in which the others concur. This suggests that they felt they needed to present their opinion in great solidarity with each other. This was an opinion of one mind-set, shared by all four. It also could be construed as a punching back after they learned that Roberts changed his vote (if that did actually happen).
3) The conservative dissent goes through topics Roberts already agreed to in his majority opinion. I found it odd that the dissent re-hashed arguments already agreed to by Roberts and therefore are the majority opinion of the court. For instance, the dissent opens up the discussion on the limits of the commerce clause and the fact that the government cannot mandate citizens engage in commerce so they can regulate it. In fact, it spends considerable time re-explaining concepts Roberts already asserted. Roberts, in speaking for the Court, already agreed with this view. Dissenting views usually explain why they dissent; they usually don't spend time on areas where they agree. I'm not sure what this means, except that maybe these words were written as part of the majority opinion and Roberts' section was written later. However, this is just a guess.
4) As has been reported now by many who were in the courtroom yesterday for the reading, Justice Kennedy was clearly upset. He was visibly unhappy with the ruling. Now, I don't know what his normal disposition is, and I don't know if he would have been visibly upset being in the minority regardless of when he found out he was in the minority. However, the speculation is now that Roberts changed his mind, which, as one might imagine, would upset those Justices who thought they were in the majority and then found out that they were in the minority.
Many of these behind-the-scenes speculations may never be known. It is unlike any justice on the Supreme Court to spill these details even years after the fact. However, it does seem as though Justice Roberts' opinion was not only a shock to the nation, but to his own conservative counterparts on the Court.