Health Care Ruling Opinions Reveal Shuffling of Views, Says Cornell Law Expert

Bernadette Meyler, a constitutional law professor at Cornell University, comments on the Supreme Court’s ruling to uphold the Affordable Care Act.

She says: “The relations of the Justices’ opinions to each other in the health care case is rather unusual. First, Chief Justice Roberts’s opinion and the Scalia-Alito-Kennedy-Thomas dissent both comprehensively cover the Commerce Clause and Spending Clause issues. Consider some alternatives: these dissenters could simply have joined Justice Roberts on the Commerce Clause and Spending Clause issues, with which their preferred outcome agrees, or Roberts himself could have joined them with respect to those issues and simply written an opinion on the taxation power that altered the outcome of the case.

“Why then did Roberts and these dissenters write separately on the Commerce and Spending Clauses? According to my reading, this may be because Roberts is significantly less radical in his rhetoric with respect to both clauses than these dissenters. Hence, the Roberts opinion is not as much of a Trojan horse as some liberals fear. In addition, as Chief Justice, Roberts may be attempting to give the decision a more coherent aspect than it would otherwise have by authoring an opinion covering all the issues raised by the case. “Another unusual feature of the opinions consists of their references—or the lack thereof—to each other. Justice Ginsburg’s opinion connects itself primarily to Justice Roberts’ opinion and, in doing so, sounds a lot more like a dissent in its entirety than a partial concurrence. Likewise, the Scalia-Kennedy-Thomas-Alito group of dissenters never refers to the Roberts opinion by name and positions itself largely in relation to the Ginsburg opinion. This may indicate some reshuffling of views during the course of the decision-making process or even that the Roberts opinion was not initially the majority opinion.”

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