I am holding out for "legal realist" myself...
Balkinization: As a blogger [that's me!] or two have noted, the joint dissenting opinion by Justices Scalia, Kennedy, Thomas and Alito refers repeatedly to Justice Ginsburg’s opinion (most of which was also joined by Justices Kagan, Sotomayor, and Breyer) as a “dissent.” In the official court syllabus, Ginsburg’s opinion is called an opinion “concurring in part, concurring in the judgment in part, and dissenting in part.” Was this… evidence… that the joint dissent was itself initially a majority opinion, and that Chief Justice Roberts’ vote changed at the last minute, leaving the Court to scramble to revise and correct all of its opinions (corrections it wasn’t fully successful in making)?… [I]t is a bit odd that the primary dissent refers to an opinion substantially concurring with the Court’s judgment as a “dissent,” rather than, say, a concurrence, or probably better given Ginsburg’s mixed conclusions, the “opinion by Justice Ginsburg.” Standing alone, I’d say curious, but perhaps not dispositive.
But then one might also note a few curious features of the dissent itself that one might be able to blame on hasty (re)drafting. The dissenters complain (Dissent Slip. Op., at 65) for example, that:
[i]t should be the responsibility of the Court to … remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment.
By which the dissenters mean, I am confident:
the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government, (Opinion of Roberts, C.J., Slip. Op., at 3)
which is precisely as Chief Justice Roberts puts it in the first paragraphs of his opinion. Did the dissenters just miss that part? Or were they upset the other justices didn’t join that piece of the Roberts opinion? Otherwise, given the prominent place this point is given, a bit hard to see their complaint.
Likewise, note that one of the dissenters’ complaints about the Court’s reading of the mandate as a tax was that it created, in the dissent’s view, another complex constitutional question…. The majority of course has an answer for the direct tax problem as well. What’s the dissent’s complaint about that answer? That the majority resolves the direct tax issue “with inadequate deliberation.” (Dissent Slip. Op., at 64). Not inadequate explanation in the opinion, but – despite truckloads of briefs, 6 hours of oral arguments, and 3 months of post-argument time for discussion – inadequate deliberation. As Justice Souter would’ve said, passing strange…