I virtually never comment on high-profile and/or U.S. Supreme Court decisions. There are lots of other people who are already inclined to do so. That's even more true with respect to today's decision about the Patient Protection and Affordable Care Act. Virtually everyone with a law degree -- and many without one -- will discuss it today.
It nonetheless seems wrong to me for me to say nothing at all about the most important (or at least most publicized) Supreme Court decision of our generation. Especially since I spent this morning reading the entire 193 pages of opinions.
So I'll mention two things. Incredibly briefly. Because while I think it's worth it to say something, I also think it's equally important for me to play golf at Torrey Pines in 30 minutes. Indeed, more so.
Here are my two statements of fact. For which I admittedly have no concrete proof:
(1) The joint dissent of Scalia, Kennedy, Thomas and Alito was originally a (perhaps tenative) majority opinion. They wrote it thinking that Roberts was joining them. It turned into a dissent when Chief Justice Roberts changed (or "clarified") his tentative vote after oral argument. It shows how quickly things can change, and how important a single person can be.
(2) Chief Justice Roberts would have voted differently if he wasn't the Chief. His vote was foundationally an act of "statesmanship" and the act of a Chief Justice. That doesn't mean he doesn't believe what he says, as I'm sure he does. But one's views are sometimes affected by one's role. And that transpired here. What he did and what he said is consistent with his views about his position as well as his personality. He doesn't take a view of history or of his role in the same way that (say) Scalia and Thomas do. His preexisting beliefs in this regard are amplified -- exponentially -- by his position as Chief and it being "his" Court. We saw this a little bit earlier in the week in the Arizona immigration case (where his vote with the liberals avoided a 4-4 split). We see it, in a different context, today. This doesn't portend a major shift in his ideology. It instead means that in high-profile cases, where being the Chief may be viewed as pressing one towards a particular role, that can matter. And it did here.
I won't attempt to defend those statements of fact. But I believe both of them.
Off to hit little white balls into tiny holes.
