Re: Linda Greenhouse Remains Hopeful on Obamacare

by Ed Whelan

A follow-up to this post: Linda Greenhouse devotes much of her latest reflection on the Obamacare case to using Monday’s visual strip-search ruling to illustrate her proposition that “there are obviously tensions and even rifts within the Supreme Court that don’t map readily onto the one-dimensional 5-4 narrative.” Fair enough. I think that she’s right to observe that the “external evidence” about that ruling suggests that there was “an internal struggle” of some sort, though I’m surprised that she didn’t note the substantial possibility that Justice Sotomayor, who ended up with no majority opinions from the October sitting, may have initially been assigned the majority opinion and have then somehow lost her majority.

Greenhouse also can’t resist taking what seems to me a cheap whack at Justice Thomas. Thomas, she notes, failed to join Part IV of Justice Kennedy’s lead opinion in the strip-search case and didn’t offer any reason for not doing so. That, Greenhouse contends, “was a wildly uncollegial act, violating the norm that votes come with reasons.”

Kennedy’s two-paragraph Part IV says only what the Court was not required to decide and was not deciding. It could have been cut without altering the meaning of the opinion. So although I don’t know why Thomas declined to join it, I don’t see how it’s “wildly uncollegial” for him not to have explained his decision. I also don’t see how he’s violated “the norm that votes come with reasons,” as his joinder in the remainder of Kennedy’s opinion amply explains his vote.

I’ll also note that two weeks before the strip-search ruling, Justice Sotomayor and Justice Kagan joined all but a small part of Justice Ginsburg’s dissent in Coleman v. Court of Appeals of Maryland and declined to offer any explanation for their failure to join that small part. In that part—footnote 1—Ginsburg reiterated her substantive positions that “Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power” and “can abrogate state immunity pursuant to §5 of the Fourteenth Amendment” under certain circumstances. Do Sotomayor and Kagan disagree with Ginsburg’s positions on these important questions? Or (as I would guess) have they simply not definitively formed their views on these questions? Who knows? If “the norm that votes come with reasons” were as robust as Greenhouse contends, she ought to condemn them for “a wildly uncollegial act.” (Surely it cannot matter whether the unjoined portion of the opinion is structured as a brief part or as a footnote.)