1. Crawford never says that Roberts committed to a decision on severability. At the conference after the oral arguments, she says, Roberts voted with the conservative group that the commerce power did not support the mandate, but Roberts was "less clear" on severability. He assigned himself the opinion, and he followed through on the commerce power.
2. One of the sources describes Roberts as becoming "wobbly" by May and failing to adequately explain what he was doing. Once it emerged that Roberts would rely on the taxing power, there was "fair amount of give-and-take with Kennedy and other justices," that one justice described as "arm-twisting." (At least they weren't neck-wringing! (A Wisconsin joke.))
3. I see vanity as a motivation to talk to Crawford:
The two sources say suggestions that parts of the dissent were originally Roberts' actual majority decision for the court are inaccurate, and that the dissent was a true joint effort.They didn't like Roberts getting credit for their work, and they didn't like getting called sloppy. It was a strange situation: Court observers were airing suspicions that Roberts had turned, which was (apparently, at least partly) true, but they were using evidence that was (apparently) not true, and that wounded the pride of the dissenting Justices who wanted it to be known that they really did write their own opinion and that they hadn't made careless mistakes. They want respect, it seems. And they don't like Roberts getting all the credit... or perhaps any of the credit.
The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.
4. The source(s) want it known that Kennedy, more generally, deserves a great deal of credit for his work over the years on the Court. Here, again, I see vanity, as Crawford — seeming like a mouthpiece — says:
Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy - in other words, changeable and too moderate.Kennedy mocked as squishy? But Roberts went wobbly! I'm seeing a pattern to these protestations. I'm seeing a psychodrama here, with Kennedy feeling rivalry toward the Chief, who structured the decision in a way that would tend to draw admiration from many of the media folk who shower affection on Kennedy when he does the things they like. Kennedy — or somebody — seems to have wanted it to be known that it's Roberts' judicial demeanor and craftsmanship that deserves mockery.
That's not entirely fair to Kennedy....