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    :: Thursday, June 28, 2012 ::
    Spooky. Whereas in Casey, the Rehnquist dissent bore telltale signs of having been written originally as the opinion of the Court, the joint dissent in the healthcare case reads as though it had never been and is not now anything else. What happened here?  (The entire opinion is now online.)

    For one thing, the "dissent" does its own Commerce Clause analysis, despite the Roberts opinion have separetely done one and rejected the individual mandate on Commerce Clause grounds. The normal dissent procedure would be for the dissenters simply to note their agreement with the majority on those points on which they do in fact agree.

    Oops -- looks like others agree! 

    First paragraph of dissent:

    Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection andAffordable Care Act (Affordable Care Act or ACA) go be- yond those powers. We conclude that they do.

    Is that the way you begin a major dissent in a major case?

    And the first time the "dissent" responds to another opinion, it responds to that of Justice Ginsburg -- the actual dissent, now turned into a partial concurrence/partial dissent.

    Ultimately the dissent is driven to saying that there is really no difference between action and inaction, ante, at 26, a proposition that has never recommended itself, neither to the law nor to common sense. [Scalia et al., slip op. at 13]

    Quite right - but not they way you'd put it if you're writing the dissent!!  Page 16 of the slip opinion marks the first point at which the joint dissent stops referring to the Ginsburg dissent as simply "the dissent," and uses for the first time (footnotes aside) the term "Ginsburg dissent."

    The "dissent" also discusses the it's-a-tax issue and the Medicaid funds withholding issue without once alluding to the existence of a separate controlling opinion out there that addresses both questions. (The passing reference to "Justice Roberts" on the "dissent"'s page 30 is to Justice Owen Roberts, author of U.S. v. Butler [1936]).

    The "dissent"'s first acknowledgment of the existence of the controlling Roberts opinion, which is what it is supposedly dissenting from, occurs on page 46; that is, in Part IV(F). The first actual reply to anything in the controlling opinion ("Worse, the Government’s remedy, now adopted by the Court..") occurs on p. 48). Given Scalia's (not to diss the others') attention to workmanship, this suggests that the Big Switch, and the consequent need to revise the opinion to make it a dissent, occurred hours, not days, before this morning.

    :: David M. Wagner 1:02 PM [+] ::

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