Was The Supreme Court On The Verge Of Killing Obamacare?

Antonin Scalia

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Brad DeLong, an economics professor at UC Berkeley, noticed a strange pattern in the Affordable Care Act dissent of Justice Antonin Scalia on Thursday. It seems as if Scalia was originally writing the majority opinion of the court. DeLong points out that Scalia repeatedly refers to Justice Ruth Bader Ginsburg’s opinion as a “dissent.” Ginsburg’s opinion differs from the rest of the majority, but she’s still in the majority

DeLong points out that it also appears that Justice Clarence Thomas forgot to change his original “joint opinion” to a “joint dissent.”

DeLong’s theory is that Scalia actually thought he was writing the majority opinion, and that Chief Justice John Roberts flipped at the last minute:

And [Scalia] did not search-and-replace his text to correct it when Roberts peeled off.

Successfully electing George W. Bush 5-4 was not enough for him. He thought he had repealed the ACA 5-4 as well.

DeLong points out that Scalia uses the word “dissent” to refer to the majority opinion fourteen times in his own dissenting opinion.

Here are the some of the key parts from Scalia’s dissent. When he uses the word “dissent,” he appears to be referring to Ginsberg’s majority opinion. 

The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Com- merce Clause that all private conduct (including failure to act) becomes subject to federal control…

Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government…

The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact crimi- nal laws, . . . the power to imprison, . . . and the power to create a national bank,” ante, at 34–35. Is not the power to compel purchase of health insurance much lesser?…

DeLong writes: “Is this deliberate–that Scalia wants us to know that his opinion was originally written to be the opinion of the Court? Or is this simply sloppy draftsmanship–chronic laziness at revision?” 

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