Forensic Linguistics and the “Obamacare” Mystery
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.
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’
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.