Two features of the scene in the courtroom at the Supreme Court Thursday flow together to spark curiosity. For one, the justices appeared unusually agitated. Justice Sonia Sotomayor looked as if she’d been up all night, for example, while (as Tony Mauro also noted) Justice Antonin Scalia was downcast and tight-lipped. Had something happened in the days or hours before the opinion to spark this emotional response?
In his bench dissent, Justice Anthony Kennedy stressed that the act had been so mutilated by the Court’s decision that it should be struck down in its entirety. That struck me at the time as odd. The Medicaid expansion, as I explained yesterday, is an important part of the act. Even so, it’s not the heart of it—that was the individual mandate. The government had argued that, if the Court struck the mandate, it should also strike the provisions guaranteeing that the people with “preexisting conditions” can’t be turned down for insurance and barring insurers from discriminating in rates on the basis of age and sex. But it argued the act could survive if other parts were struck.
Besides, in the current opinion, the Medicaid expansion isn’t even struck down; it is simply modified in a way that may have little practical effect. Kennedy’s language on this part, insisting that because one part of the act was invalid, the whole thing must go—seemed over the top.
A reader today pointed out that the printed joint dissent doubles down on this rhetoric by charging that the Court:
creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.
Mysteriously, the joint dissent repeatedly refers to Justice Ruth Bader Ginsburg’s partial concurrence and partial dissent as “the dissent,” which it isn’t.
Again, where is this coming from? It’s an enormous overstatement, even in the midst of a highly rhetorical dissent. Why is the act “debilitated” or “inoperable”? Who are the “certain interests favored” by a limitation on federal discretion over conditional-spending funds? And the Medicaid ruling leaves no “necessary congressional revision.”
Could it be that at conference in March, the chief justice voted with the four conservatives to strike the mandate but then split the difference by voting with the four moderate liberals to sever the mandate and allow the rest of the act to go into effect?
Roberts assigned the opinion to himself, since “strike and sever” was now the result. Then Kennedy might have taken on a major partial concurrence and partial dissent explaining why Roberts was wrong on severability. That explains another slight mystery from the March sitting. Kennedy was the senior justice in the majority in Miller v. Alabama. Why didn’t he assign that opinion—on an issue close to his heart, juvenile sentencing—to himself instead of to Justice Elena Kagan? The justices have a custom of only taking on one major assignment per monthly session; Kennedy already had his hands full.
Now Roberts sets out to write his “strike and sever” opinion. Perhaps as he worked through the question, he discovered that he couldn’t after all reject the government’s "taxing power" argument—that even if the mandate was not a valid use of the commerce power, it was also valid as a tax. Court watchers know that justices who sit down to write sometimes find themselves reconsidering their reasoning—around the Court, the expression is “it wouldn’t write.”
So, in this scenario, Roberts circulates his opinion, and the four conservatives realize that they have lost on the mandate issue. Now the act is essentially being upheld.
Without the mandate, the language about a “debilitated, inoperable” act would have made sense. And if Roberts agreed with the four conservatives on the mandate, Ginsburg would in fact be writing “the dissent.”
If this scenario is correct, then the Court’s deliberations over the ACA will go down in history (eventually) as high drama, equal to the last-minute struggle over Bush v. Gore, the sudden change of heart by Kennedy that prevented Roe v. Wade from being overruled in Planned Parenthood v. Casey, and even the famous “switch in time that saved the nine” during the Roosevelt court-packing struggle.
We may not know for decades, when the Court’s internal memos are released. In the interim, we have to deal with the odd opinion that we have.