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June 25, 2012

A New Tea Leaf For Ace: Roberts Writing Majority ObamaCare Decision And Ginsburg Writing Dissent?

Ace said he wanted a better ObamaCare tea leaf than "Scalia is cranky because he lost ObamaCare", well, via Brian Faughnan here's is a better (in every way) tea leaf.

Chief Justice John Roberts is expected to author the majority ruling in the health case because of its significance and because Justice Anthony Kennedy authored the Arizona opinion, which was the second most controversial case of the term. Plus, neither he nor Justice Ruth Bader Ginsburg have published any opinions since May 24. During that time, every other justice has published at least two majority opinions.

If Roberts does author the opinion, hes at the top of the seniority list, so health care could be the last of the three cases released on Thursday.

That makes a lot of sense. Roberts is likely to be writing the majority opinion no matter which way the decision goes but there's no way Ginsburg is in the "overturn camp" (if she were, Roberts would go with that majority). Ginsburg is the senior liberal justice so if it's a 5-4 overturn ruling, she would have first chance to write the dissent (the senior justice on each side has 'dibs' on writing for their camp) so this makes a lot of sense.

I didn't put any stock in the "Scalia is cranky because of ObamaCare" theory because it's just lame. Scalia has long championed the "sovereign state" theory that no one really buys (Thomas dissented but for different reasons and Alito was partially in agreement with the majority and partially in dissent but for very different reasons than either Scalia or Thomas). That alone would make Scalia cranky.

The worst part of Scalia Arizona dissent (aside from an agreement I found unpersuasive) was it wasn't any fun. Read his dissent in Lawrence v. Texas to see how biting he can be. Today he was just running around in circles that made no sense. Also his argument against "field preemption" might be sound but it seems to contradict his awful opinion in Raich.

FWIW, I found Alito's opinion to be the most persuasive. The whole set of opinions (pdf) isn't that long (relatively speaking) and worth reading.

But... [ace]: I was just asking Drew this by email: What if Kennedy flipped to the liberals, and then permitted Ginsberg to write the majority opinion (because he's embarrassed of it, and she's gung-ho), and Roberts is actually writing the dissent?

Drew again: My response to Ace was, Kennedy is an attention whore. No way he passes on the chance to write THE decision of the term and more. As for the notion that Kennedy is "embarrassed" by his position...I don't see how the guy who wrote the much laughed at "mystery of life" passage in Casey v. Planned Parenthood is embarrassed by anything.

It's all guess work at this point but hey, we've got 2 1/2 days to kill.

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posted by DrewM. at 07:07 PM

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