I can’t say I’d put more than a dime on it. But ever since Justice Scalia’s outburst yesterday, I’ve sort of wondered about this and a number of readers have asked too. Is that the big tell? TPM Reader RG wonders too …
Have nothing to go on with this, but Scalia’s over-the-top dissent on Arizona — and it’s pointed, personal attack against the president gave me a weird idea. Note that Roberts was in the majority on Arizona — even though Kennedy wrote the opinion. If he wanted to, he could have sided with the minority — leaving a tie and the whole thing up in the air. He didn’t — thus allowing a mixed bag that gave the administration a slender win.
Now, note that, as everyone is pointing out, Roberts is apparently writing the ObamaCare decision himself. Could Scalia’s tantrum forecast his anger at a health-care decision that isn’t quite going to go his way? Now, I’m not sure exactly what “his way” means in this case — complete repeal? Gutting the Commerce Clause? Who knows? Regardless, if Scalia thinks that Roberts is going to seriously limit the “victory” that the Scalia-Thomas-Alito group might want to deliver, his fit of pique Monday could have tipped that. In short, the individual mandate going down, but other major parts of health care reform surviving.
Again, just a thought.
Josh Marshall is editor and publisher of TalkingPointsMemo.com.