SCOTUSblog: CBS story challenges Roberts' ability to lead

A very interesting read from SCOTUSblog on the likely affects of the Sebelius decision, the CBS report, the leaks that lead to it, and who wrote what:
[T]here is the discussion of the composition of the dissent... the story says that the Chief Justice had no part in that document.  It was the joint collaboration of the four Justices who ultimately dissented, according to the account.

The story also implies that the writing of that opinion came after Roberts’s purported switch.  But there is one telltale contradiction of that possibility.  On page 25, the dissenters say that, if the ruling in favor of the mandate were based upon the Tax Clause, that ”would force us to confront a difficult constitutional question,” but it then added that “we have no need to address the point.”   The point is whether the tax was, in constitutional terms, a “Direct Tax.”  But, unaccountably from the language in the dissent, Roberts’s opinion does directly confront that difficult question, and decides that the penalty associated with the mandate is not a Direct Tax, but is a tax nonetheless.  That conflict makes the supposed sequencing of the dissent and the Roberts opinion somewhat doubtful...

[T]he prospect of lingering impact of the CBS story is not due only to the fact of the leaks.   The content itself is a public rebuke of Roberts, from inside the Court, and amounts to a direct challenge to his ability to lead the Court and to take steps — if that was what his position on the health care law was intended to do — to insulate the Court from the partisan polarization that so dominates the rest of Washington.
Read the whole thing.

Crazy stuff. But no worries Mr. Chief Justice, half the people are oblivious. Just go on writing both opinions and dissents. I hear it's good mental exercise.


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