June 28, 2012
Having just sped through Scalia’s dissent, a legal friend of mine observes that it is somewhat unusual. It reads like a majority opinion. Ninety-five percent of it is devoid of any criticism of the majority’s opinion, reasoning, etc. The only criticism of the majority opinion is in a few short paragraphs at the end. Almost as if it were appended at the last minute. Typically, a dissent will critique the errors of the majority opinion point-by-point throughout. That is not the case here.
Was the Scalia opinion written as the majority opinion? Opinions are written and then circulated for changes. There would be no reason for Scalia to write a “majority opinion” unless his view had the votes to succeed and he had been assigned to be the author. Could it be that the case was going to come down the other way until Roberts, or someone else, was persuaded to change his or her vote?