…In their brutal (and, in a rarity, jointly signed) dissent, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito write that the Chief Justice’s logic “is not to interpret the statute but to rewrite it. . . . One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.” They score the Chief Justice for carrying “verbal wizardry too far, deep into the forbidden land of the sophists.”
Justice Kennedy dissented angrily from the bench, and it is to his credit that he defended the federalist system of shared powers that is the hallmark of his years on the Court. The particular tragedy is that four Justices would have overturned not merely the purchase mandate but all of ObamaCare as unconstitutional. Only John Roberts prevented it.
One telling note is that the dissent refers repeatedly to “Justice Ginsburg’s dissent” and “the dissent” on the mandate, but of course they should be referring to Ruth Bader Ginsburg’s concurrence. This wording and other sources suggest that there was originally a 5-4 majority striking down at least part of ObamaCare, but then the Chief Justice changed his mind.
The Justices may never confirm this informed speculation. But if it is true, this is far more damaging to the Court’s institutional integrity that the Chief Justice is known to revere than any ruling against ObamaCare…