Thank You, Justice Scalia
A commenter on Andrew Sullivan’s blog makes an important observation about today’s decision.
Even more strangely, it refers repeatedly to the “Ginsburg dissent,” but Ginsburg is in the majority on most issues. What’s all this about? Were the tables turned midway? Did Roberts first sign on to Scalia’s opinion and then bail on him? Is that what Ginsburg was ribbing Scalia over in her ACS remarks? I suspect there is an amazing an untold backroom story behind this decision. It may be a while before we learn it. But the sense I have is that Scalia had the votes to take a sledgehammer to ACA, and then lost Roberts. Was it Scalia’s overreaching and his overheated rhetoric that did him in?
Scalia would have overturned the entire act (including the Medicaid expansion). Perhaps Roberts was ready to kill the mandate but preserve the rest, and Scalia’s extremism drove him away. Who knows, but I can’t tell you how much I enjoy the fact that the Affordable Care Act may be as much the legacy of Justice Scalia as President Obama.