Balkinization  

Tuesday, July 03, 2012

My View on Drafting NFIB

Mark Tushnet

One advantage of being without regular internet access is that there's time to think. I'm going to post a series of entries about NFIB. This first one lays out my take on the drafting process in NFIB. (To keep it within length, I'll use a second entry to explain some of the reasons I have for my interpretation.) Before beginning, I should say that I have no inside sources, only a sense of how the Court works and who the Justices are. (Of course, Paul Campos and Jan Crawford have reported information they say came from inside sources at the Court. Their accounts being inconsistent, someone's not telling one -- or both -- of them the truth.)

I have two accounts, and give the first about a 60% chance of being right. On that account, the Conference vote after the oral argument was 5-4 to invalidate all portions of the ACA. The arguments came reasonably late in the Term, and there were a lot of issues. So, the majority decided to divide the work up, parceling out various issues -- the Tax Injunction Act, severability, and the rest -- to different justices. The Chief Justice took, or assigned, the tax issue to himself, perhaps because he was the "least persuaded" among the majority about the correctness of their tentative position.

As he and his law clerks worked on the tax issue, the Chief Justice discovered that the opinion "wouldn't write." He couldn't come up with an account of the tax power -- persuasive to him -- that would invalidate the ACA. Perhaps his difficulty in getting an opinion that "would write" was influenced by institutional concerns about the long-term standing of the Court, or somewhat different institutional concerns about his ability to pursue a conservative legal agenda on matters more important to him over the long run. And, though less plausibly, perhaps these institutional concerns came to have more salience as liberals mounted their post-argument challenges to an anticipated decision invalidating the ACA. But, I would guess, those things operated -- if they did, and I'm skeptical -- well below the surface. Mostly, the Chief Justice found that the opinion wouldn't write.

On this view, the Chief Justice didn't "switch" his vote, because he hadn't been firmly committed to the view that the ACA couldn't be defended under the tax power. Once he indicated his view on the tax issue, the rest of the opinions fell into place. The four now-dissenters assembled their separate contributions into their joint dissent and tacked on some discussion of the Chief Justice's new position.

The second account (the 40% one) contains the "the opinion wouldn't write" idea, but has the Chief Justice taking the entire opinion for himself, drafting all the parts, and circulating everything. Having sat back awaiting the Chief Justice's draft, the four now-dissenters were under some time pressure and simply appropriated into their joint opinion the non-tax parts of the Chief Justice's opinion. (This is close to Campos's account.)

I think I want to end this post with the observation that if either of my accounts is right, it turns out that law mattered quite a bit -- maybe not completely, because of the sub-surface level on which institutional issues might have operated, but quite a bit. For some, that observation will make the Chief Justice look better in their eyes, for others worse.

My next blog post will go through some of the reasons I have for these two accounts.

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