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July 03, 2012

Salon: Yup, The "Dissent" Was Mostly Roberts' Old Majority Opinion

Why would the dissenters do this? Even keeping the language that called Ginsberg's concurrence (with the majority) "The Dissent"?

Frankly, I think, to embarrass Roberts.

My source insists that “most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’ chambers in April and May.” Only the last portion of what eventually became the joint dissent was drafted without any participation by the chief justice.

And he deserves the embarrassment. That said, if he now feels betrayed, this weak man will cozy up fast enough with the swell people whose opinions are the only thing that matters to him, i.e., liberals.

So, who leaked? Speculation continues to focus on Kennedy, with some circumstantial evidence that maybe it was Thomas. (He's given interviews to CBS' Crawford, who had the story.)

But perhaps this is irrelevant -- if the four justices now in the dissent wished to make a Statement by using Roberts' own words to embarrass him, in all likelihood, they were unified in their belief that people should know about this. So they may have mutually agreed that it should be leaked.

Alternate Theory: This actually makes a lot of sense:

[J]ust maybe, because they held out hope to the bitter end that he’d switch back and join them in striking down the law. By keeping the dissent intact as a potential majority opinion rather than larding it up with language lashing out at Roberts, the four conservatives made it as easy as possible for him to reconsider and climb back aboard right down to the wire. To my mind, that’s the best explanation for the tone of the opinion, the inclusion of the otherwise gratuitous severability section, and the lack of any references to Roberts’s opinion. They weren’t working on a dissent, they were working on a shadow majority, ready to go right out of the box in case Roberts came back into the fold. (Crawford notes that Kennedy was lobbying Roberts up to the last minute, in fact.)

Via the link to Allah.

That's certainly less provocative than my own theory.

Even so, they did have time to modify the Roberts' draft into a dissent-- but chose not to.

Why not? It doesn't take all that much work to change a criticism of "The Dissent" to "The Concurrence." Just a word search & replace. But they didn't even do that much.

They also chose not to join Roberts even when they agreed with him (the Commerce Clause language). Why not?

This seems very pointed to me.

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posted by Ace at 05:09 PM

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