Bernstein on Healthcare Law Dissent: A Position Abandoned?

Amid analysis of the recent Supreme Court decision on the Affordable Care Act, Professor David Bernstein and others point to what they believe to be interesting evidence that Chief Justice John Roberts may have sided originally with other conservatives on the Court, but changed his vote later in the deliberative process. 

In stories carried in The Washington Post and The Washington Examiner, Bernstein notes that the dissent offered by the conservative justices reads more like an opinion for the court that had been abandoned than as a traditional dissent, citing several oddities to support his opinion.

Chief Judicial Activist John Roberts, The Washington Examiner, June 30, 2012. By Conn Carroll.

"George Mason University Law School professor David Bernstein, and others, have collected a sizable amount of evidence suggesting Roberts did originally side with his conservative brethren on the law, but flip-flopped late in the process.

"First, Bernstein notes, the conservative dissent has a long and well developed section on why the court should strike down the whole law and not just the mandate. If the dissenters knew they were writing a dissent, this section would likely never have been written. Since the mandate was upheld, it is completely irrelevant.

"Second, Justice Antonin Scalia's response to Roberts' decision upholding the mandate under the taxing power is tacked on at the end of the dissent. If this was Roberts' position from the beginning, why did Scalia wait so long and spend so little time rebutting it?

"Finally, the conservative dissent repeatedly refers to Justice Ruth Bader Ginsburg's opinion as a 'dissent.' But Ginsburg was on the winning side. Unless Roberts changed his mind late in the game, it should have been called a concurrence."

Read the article

Related coverage:

The Washington Post

National Review Online