Roberts switched views to uphold health care law
And in a 1995 term limits case, when the Court rejected state efforts to impose term limits on Members of Congress, Kennedy wrote a separate, concurring opinion to make a point about federalism:
"Federalism was our nation's own discovery. The framers split the atom of sovereignty . . . It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other."
Those structural boundaries, Kennedy believes, help protect the individual from runaway government power, and are key components to protecting liberty.
All of that dovetails with Kennedy's position on the individual mandate in the health care law. Close associates of Kennedy never thought he would waver in the case once he recognized the federal mandate as an encroachment on individual liberty (points Kennedy later would make in his sections of the joint dissent).
In fact, Kennedy was the most forceful and engaged of all the conservatives in trying to persuade Roberts to stand firm to strike down the mandate. Two sources confirm that he didn't give up until the very end.
But Roberts didn't focus entirely on Kennedy, the sources said. He tried to persuade the conservatives to join at least the parts of his opinion with which they agreed, such as his Commerce Clause analysis.
"People, for good reasons of their own, often fail to do things that would be good for them or good for society. Those failures - joined with the similar failures of others - can readily have a substantial effect on interstate commerce," Roberts wrote in his opinion. "Under the government's logic, that authorizes Congress to use its commerce power to compel citizens to act as the government would have them act.
"That is not the country the framers of our Constitution envision," Roberts wrote.
But despite Roberts' strong language on the Commerce Clause, the conservatives would have none of it, the two sources said, even though there was no significant difference in their reasoning on that issue.
Indeed, since the four conservatives agreed the mandate went beyond the commerce power, the Court now has five Justices who would constrain what Congress can do going forward - imposing significant limits on federal power.
The majority decisions were due on June 1, and the dissenters set about writing a response, due on June 15. The sources say they divided up parts of the opinion, with Kennedy and Scalia doing the bulk of the writing.
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.
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.
The language in the dissent was sweeping, arguing the court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia - and then, there is Justice Kennedy.
"The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril," the dissent said. "Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."
- Jan Crawford
Jan Crawford is CBS News Chief Political and Legal Correspondent. She is from "Crossroads," Alabama.Follow on Twitter »
- Gates knocks "cartoonish" Benghazi criticism
- "Face the Nation" Sunday, May 19
- Official: We knew Benghazi was a terrorist attack "from the get-go"
- Maya Angelou recalls her childhood on Mother's Day
- Face the Nation transcripts May 12, 2013: Gates, Pickering, Ayotte, Durbin, and Angelou
- "The witch hunt continues" on Benghazi, Durbin says
- May 12: Gates, Pickering, Ayotte, Durbin & Angelou
- Attkisson discusses "allegations of a coverup" on Benghazi
- Face the facts: A fact check on gas prices
- "Face the Nation" transcripts, September 16, 2012
- Pickering: Wasn't "necessary" to question Clinton in Benghazi report
- Face the Nation: Local Listings
- Direct U.S. military involvement in Syria "would be a mistake," says Gates
- King, Navratilova on Jason Collins' coming out, LGBT rights
- Bob Schieffer
- Sequester shows big problems we can't solve right now, Club for Growth president says