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Originally Posted by Sauron
So Ezra Klein thinks this might have actually been just a clever move on Roberts' part, to set the chessboard up more effectively for conservatives:
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The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn’t. If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid. ”He was on-board with the basic challenge,” said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. “He was on the conservative side of the controversial issues.”
[....]
One interpretation is that Roberts was playing umpire today: He was simply calling balls and strikes, as he promised to do in his Senate confirmation hearings. But as Barnett’s comments suggest, the legal reasoning in his decision went far beyond the role of umpire. He made it a point to affirm the once-radical arguments that animated the conservative challenge to the legislation. But then he upheld it on a technicality.
It’s as if an umpire tweaked the rules to favor his team in the future, but obscured the changes by calling a particular contest for the other side. ”John Roberts is playing at a different game than the rest of us,” wrote Red State’s Erick Erickson. “We’re on poker. He’s on chess.”
By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.
But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.
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Yeah, I keep reading things kind of like this, the whole "We're playing poker and John Roberts is playing chess!" thing. I don't really buy it though.
The merits ruling that the mandate is not a constitutional exercise of the commerce power is an important data point in terms of commerce clause jurisprudence. But it doesn't really amount to some huge new limitation on Congressional power to regulate. It's not like they overturned
Wickard or anything, or that that's likely to happen. It's not clear that this even extends
Lopez in any significant way.
It's also not like Roberts crafted some extremely clever solution to a thorny problem. Don't get me wrong, this is a very good opinion. (Also a dense one, Christ, I am about a tenth of the way to understanding it.) But Roberts endorsed an alternative basis for the Congressional power that was presented by the government all along.
To
paraphrase John Roberts, the way to constrain the federal government’s power is to start constraining the federal government's power. This opinion doesn't really do that; the Congressional action remains intact. I'm not buying the narrative of the Machiavellian long game. That seems too ginned-up by reactionaries seeking a silver lining. I think if we're going to impute long-term political motives to the Chief Justice, it's more likely that he wanted to be on the right side of history.