As legal scholars study the Supreme Court’s decision in the Obamacare case, more and more are concluding that Justice Anthony Kennedy’s dissenting opinion, striking down the law in its entirety, was once the majority opinion–and that Chief Justice John Roberts switched his vote at a late stage. If so, it would appear that the Chief Justice may have succumbed to the bullying meted out by President Barack Obama, who attacked the Court in the aftermath of oral arguments in March, when Obamacare seemed headed for certain defeat.
As National Review‘s Ed Whelan, the Volokh Conspiracy‘s David Bernstein, and others are pointing out, the dissent refers to another opinion as “the dissent” and uses the pronoun “we,” as if speaking for the Court, as majority opinions typically do. In addition, the dissent focuses on the government’s arguments, rather than tackling the majority head-on. That suggests that a switch–most likely by the Chief Justice himself–may have come very late in the game, too late to offer more than the most cursory revisions of the opinions in the case.