Reasons for Thinking that Law Mattered

Mark Tushnet

This post is going to get pretty deep in the weeds, and unless you're a real fanatic you might want to skip it.

The evidence that the initial conference vote was 5-4 to strike down the ACA is pretty strong. Not only is there the internal stylistic evidence, but there were rumors before the decision to that effect. Within a couple of weeks of the arguments, I heard a rumor, sourced to a law clerk, that the Court had voted to strike the ACA down. The route to me had some credibility, but one could also raise some questions about the interests lying behind the rumor's circulation (interests not in the litigation but in establishing that the intermediary was a person who had inside sources). (I'll return to the issue of interests shortly.) Several weeks later I heard that a Washington law firm -- I forget which -- was saying that the Medicaid expansion was going to invalidated. And, on June 2, Ranesh Ponuru stated that he had heard from inside the Court that the initial vote was 5-4, but that the Chief Justice had gotten "squishy." The June 2 date is significant because, according to Jan Crawford, the Chief Justice's proposed opinion was scheduled to be circulated on June 1.

On the possibility of joint opinions, with parts divided among the justices: It's been done before, most notably recently in McConnell v. FEC, which upheld the McCain-Feingold Bipartisan Campaign Finance Reform Act. The conditions for doing it tend to be complexity, in the sense that the case contains multiple but somewhat independent issues, and time pressure. Those conditions seem present in the ACA litigation. But, it's worth emphasizing that the Justices have staffs of smart law clerks who can be put to work really hard over a short period of time, which is why it's plausible that the Chief Justice drafted the entire decision.

The "least persuaded" assignment is something political scientists have written extensively about. The theory is that the Justice with the opinion assignment power gives the opinion to the Justice who is least persuaded, in the hope that the act of writing will cement the writer's position (and out of concern that assigning the opinion to a Justice with stronger views might drive the least persuaded Justice to the other side). The complication here is that, on my preferred account, the opinion assigner was himself the least persuaded.

And, sometimes the least persuaded finds that the opinion won't write. The most recent prominent example of which I'm aware is Justice Kennedy's opinion in Lee v. Weisman, the high-school graduation prayer case (discussed in my book, A Court Divided: The Rehnquist Court and the Future of Constitutional Law at pages 186-87; I quote Kennedy as saying that his draft opinion allowing the prayer "looked quite wrong"). Of course, when this happens in a 5-4 case the now-dissenters tend to get quite annoyed.

On the question of institutional concerns: One difficulty with giving them a prominent role is that they were apparent from the very beginning. The Chief Justice would have to have been quite out of touch had he not understood, on the day the tentative vote was taken, that a narrative of "the partisan Republican Court" linking Bush v. Gore, Citizens United, and NFIB -- and perhaps Fisher v. University of Texas and other cases to come -- would readily develop. Now, it's possible, though I think unlikely, that the liberal challenge to the Court after the argument deepened the Chief Justice's appreciation of this point, somehow pushing him over the edge when he hadn't been there on the day the tentative vote was taken.

Finally, on the interests at stake in describing what happened: Lyle Denniston describes some aspects of this issue. I'd add only that between the argument and decision day both liberals and conservatives were "working the refs," trying to construct narratives -- for liberals, of the partisan Republican Court, for conservatives, of liberals attempting to intimidate the Court -- that were, I think, designed for the long-term but that might -- just might -- have had some effects in the short run. It's reasonably clear that Crawford's and Campos's sources are continuing the effort to work the refs. There's usually some relation between the facts and what people with (different) interests in working the refs report, but I'd be cautious about accepting their assertions without thinking about what interests are being served by the leaks.
Posted 8:35 PM by Mark Tushnet [link]