Scott Lemieux vs. the Right-Wing Robed Republican Hax of Sol III
More Evidence That Scalia's Dissent Was Originally Written to Be the Opinion of the Court...

Did Nino Scalia Firmly Think He Had His "Constitutional Moment", and His Majority?

Sure sounds like he did not search-and-replace his text to correct it when Roberts peeled off.

Successfully electing George W. Bush 5-4 was not enough for him. He thought he had repealed the ACA 5-4 as well.

Scalia refers to Ginsburg's concurrence--agreeing with the Court that the mandate stands, but for different reasons than the opinion of the Court expresses--not as a concurrence, but as a "dissent":

Our test’s premise of regulated activity is not invented out of whole cloth, but rests upon the Constitution’s requirement that it be commerce which is regulated. If all inactivity affecting commerce is commerce, commerce is everything. Ultimately the dissent is driven to saying that there is really no difference between action and inaction, ante, at 26, a proposition that has never recommended itself, neither to the law nor to common sense…

Repeatedly:

The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Com- merce Clause that all private conduct (including failure to act) becomes subject to federal control…

Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government…

The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact crimi- nal laws, . . . the power to imprison, . . . and the power to create a national bank,” ante, at 34–35. Is not the power to compel purchase of health insurance much lesser?…

The dissent’s exposition of the wonderful things the Federal Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, at 2, is quite beside the point. The issue here is whether the federal government can impose the Individual Mandate through the Commerce Clause…

The dissent treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is “the Nation’s course in the economic and social welfare realm,” ibid., and more specifically “the problem of the uninsured,” ante, at 7. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers…

The dissent dismisses the conclusion that the power to compel entry into the health-insurance market would include the power to compel entry into the new-car or broccoli markets…

In its effort to show the contrary, JUSTICE GINSBURG’S dissent comes up with nothing more than two condemnation cases, which it says demonstrate “Congress’ authority under the commerce power to compel an ‘inactive’ landholder to submit to an unwanted sale.” Ante, at 24. Wrong on both scores. As its name suggests, the condemnation power does not “compel” anyone to do anything. It acts in rem, against the property that is condemned, and is effective with or without a transfer of title from the former owner. More important, the power to condemn for public use is a separate sovereign power, explicitly acknowledged in the Fifth Amendment, which provides that “private property [shall not] be taken for public use, without just compensation.”

Thus, the power to condemn tends to refute rather than support the power to compel purchase of unwanted goods at a prescribed price: The latter is rather like the power to condemn cash for public use. If it existed, why would it not (like the condemnation power) be accompa- nied by a requirement of fair compensation for the portion of the exacted price that exceeds the goods’ fair market value (here, the difference between what the free market would charge for a health- insurance policy on a young, healthy person with no pre-existing conditions, and the government-exacted community-rated premium)?…

Those differences make a very good argument by the dissent’s own lights, since they show that the failure to purchase health insurance, unlike the failure to purchase cars or broccoli, creates a national, social-welfare problem that is (in the dissent’s view) included among the unenumerated “problems” that the Constitution authorizes the Federal Government to solve. But those differences do not show that the failure to enter the health-insurance market, unlike the failure to buy cars and broccoli, is an activity that Congress can “regulate.”…

Nine times Scalia refers to Ginsburg's opinion on the mandate not as a concurrence--agreeing with the result, but for different reasons--but as a "dissent". An opinion that reaches the same result but by a different road is not a dissent. And there was not "a" dissent. There were three: Thomas's, Ginsburg's, and Scalia's. When there are three dissents--two other dissents--to refer to one of them as "the" dissent is, at the least sloppy.

Is this deliberate--that Scalia wants us to know that his opinion was originally written to be the opinion of the Court? Or is this simply sloppy draftsmanship--chronic laziness at revision?

And what made Roberts peel off?

Inquiring minds want to know...

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