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Of course Roberts flipped his ACA vote in Sebelius 2012. We knew as soon as the Court issued its decision...
Because the opinions had not been corrected to reflect which was the dissent and which was the concurrence!
See my June 2012 thread before I knew how to thread:
Because the opinions had not been corrected to reflect which was the dissent and which was the concurrence!
See my June 2012 thread before I knew how to thread:
2/ Here is the second tweet from my ACA unthreaded thread on the signs of Roberts flipping his vote from the errors in the first slip Sebelius opinion.
(How do we go back and find the original slip opinions before they were corrected?)
(How do we go back and find the original slip opinions before they were corrected?)
3/ A third tweet from 2012 on Roberts’s ACA flip:
4/ I've gone back to the slip opinion to show the signs of Roberts flipping his ACA vote in Sebelius.
Note (in red) the dissenters mistakenly refer to Ginsburg's "dissent" on the individual mandate.
But Ginsburg did not dissent on the mandate. She concurred on different grounds.
Note (in red) the dissenters mistakenly refer to Ginsburg's "dissent" on the individual mandate.
But Ginsburg did not dissent on the mandate. She concurred on different grounds.
5/ The above screenshot was from p. 13 of the dissent.
Here is Ginsburg's own introduction to her opinion. She shows it is clearly a concurrence on the mandate, agreeing on Congress's taxing power. She also finds it a valid use of Congress's commerce clause power:
Here is Ginsburg's own introduction to her opinion. She shows it is clearly a concurrence on the mandate, agreeing on Congress's taxing power. She also finds it a valid use of Congress's commerce clause power:
6/ Here's page 14 from the Scalia/Kennedy/Thomas/Alito dissent.
They keep calling Ginsburg's opinion a dissent. Maybe because whenthey drafted their opinion. it was then a concurrence on striking down the mandate, and Ginsburg was really dissenting on that?
They keep calling Ginsburg's opinion a dissent. Maybe because whenthey drafted their opinion. it was then a concurrence on striking down the mandate, and Ginsburg was really dissenting on that?
7/ Scalia/Kennedy call Ginsburg's view on the commerce clause a "dissent" about five more times. I'm adding one more here from the end of this analysis, just because it includes the famous "broccoli" line...
8/ I'm not claiming these slips prove why Roberts changed his vote. But they indicate that when the 4 dissenters were responding to circulated drafts at a relatively late stage, they did not think they were dissenting. They thought Ginsburg was.
@_John_Mikhail @NeilScottSiegel
@_John_Mikhail @NeilScottSiegel
9/ I just learned how to search for old tweets! And look what I found. A colleague's very interesting observation on how oddly Scalia/Kennedy/Thomas/Alito handled the tax power argument:
10/ Part 2 of that tweet from June 2012:
(Again, these tweets are from the day the decision came down. Some of us immediately knew Roberts had flipped his vote)
(Again, these tweets are from the day the decision came down. Some of us immediately knew Roberts had flipped his vote)
11/ @NeilScottSiegel is right: We shouldn't jump to conclusions about Roberts's motivations. But if Siegel's post gives animpression that Roberts had not made his vote clear, I note that he seems to have given his initial vote against the mandate clearly. balkin.blogspot.com/2019/03/in-def…
