Blogger Lawrence B. Solum read Justice Antonin Scalia’s dissenting opinion in today’s ruling upholding the Affordable Care Act, and finds interesting typos suggesting Scalia may have originally written his opinion as a concurrence rather than a dissent:
After a preliminary read of the opinions in the Health Care Cases (National Federation of Independent Business v. Sibelius), there seems to be substantial evidence that the initial vote in conference was to strike down the mandate as unconstitutional. The opinion of Justice Scalia, Kennedy, Thomas, and Alito looks like parts of it were once a majority opinion.
Specifically, Solum cites part of the opinion that refers to Justice Ruth Bader Ginsburg’s opinion as a dissent:
The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.”
Obviously it’s very unlikely we’ll ever know what the truth is in the matter, but it remains very interesting nonetheless, and a reminder of what almost was.