The New Yorker recently published an article called “Words on Trial” about “forensic linguists”—people who analyze textual clues in, say, ransom notes to help solve crimes.
Duly inspired, I’ve attempted below to apply such techniques to a legal mystery: In the “Obamacare” case, did Chief Justice John Roberts switch votes at the last minute, abandoning what became the Scalia-Alito-Thomas-Kennedy joint dissent and signing the fractured majority opinion instead?
Here’s the verdict from my own FLI (Forensic Linguistic Investigation): all parts of the majority opinion scream “Roberts.” Keep in mind that a large part of that opinion went against the Administration, finding no Commerce Clause support for the mandate. That said, I hardly think that the Chief Justice could have slapped those sections together at the last minute, as some accounts have suggested.
I report six clues below; you decide.
First Clue. The majority opinion includes a sentence that echoes the most famous line Roberts ever wrote before joining the Supreme Court. Here’s the sentence from the “Obamacare” decision: “People, for reasons of their own, often fail to do things that would be good for them or good for society.” That sentence sounds eerily similar to a line from Roberts’s controversial dissent in another Commerce Clause case, Rancho Viejo v. Norton. In that case, he wrote as a D.C. Circuit judge of “a hapless toad that, for reasons of its own, lives its entire life in California.”
Second Clue. The majority opinion is loaded with semicolons, one of Roberts’s favorite devices. Examples:
Legislative novelty is not necessarily fatal; there is a first time for everything.
In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.
To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce.
Third Clue. The majority opinion favors Congress’s, not Congress’—and that has long been Roberts’s preferred usage. Example: “Congress’s decision to label this exaction a ‘penalty’ rather than a ‘tax’ is significant because the Affordable Care Act describes many other exactions it creates as ‘taxes.’” Compare that with this sentence from the Ginsburg concurrence: “The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’
efforts . . . .” Or with this sentence from the Scalia-Thomas-Alito-Kennedy joint dissent: “Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce.”
Fourth Clue. Here’s a short passage from Roberts’s majority opinion: “The Government observes that the Social Security Act, which includes the original Medicaid provisions, contains a clause expressly reserving ‘[t]he right to alter, amend, or repeal any provision’ of that statute. So it does.” “So it does”—like “So too here” in Roberts’s brief in Alaska v. EPA—is also vintage Roberts.
Fifth Clue. In the quotation below, which is from the dissent, the sarcasm in the phrase “wide and wonderful” is too sharp to be Roberts’s. It’s Scalia all the way: “The issue here is whether the federal government can impose the Individual Mandate through the Commerce Clause. And the relevant history is not that Congress has achieved wide and wonderful results through the proper exercise of its assigned powers in the past, but that it has never before used the Commerce Clause to compel entry into commerce.”
Sixth Clue. This long, manufactured phrasal adjective in the dissent is another hallmark of Scalia’s prose: “Article I contains no whatever-it-takes-to-solve-a-national-problem power.”
And there you have the results of my first foray into the burgeoning-and-exciting-but-not-always-conclusive science of forensic linguistics.