Professor Jacobson of Legal Insurrection isn't buying this notion that Chief Robert's decision to weigh in with the liberals on the court was part of some crafty long term strategy:
Some well-meaning people are peddling the notion that today’s Obamacare decision was a long term victory, that we lost the battle but won the war, that there was some master plan by Chief Justice Roberts to gut the expansion of Commerce Clause power under the fig leaf of a majority ruling upholding the mandate under Congress’s taxing power.
To paraphrase Joe Biden, I have just four words for you:
BIG —— DEAL
If this were some other more narrow law, if this was not a monumental takeover of the most private aspects of our lives, if this monstrosity would not cause such long term damage to our health care system, if this law was not Obamacare ….
I might be inclined to agree with you.
But it is Obamacare, it is the takeover of a substantial portion of our economy which empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.
This was the hill to fight on for any conservative Justice of the Supreme Court.
Yet because the conservative Chief Justice sided with the liberal Justices on the result, we have Obamacare.
Whether the Chief Justice did it out of good faith belief in the correctness of his opinion (which is what I believe) or as part of some master plan (the theory some are peddling), the result is the same: Until further notice Obamacare is the law of the land.
Sure, we now are motivated for November. And maybe in the end we will get rid of Obamacare.
But that is then and this is now. And under any reasonable theory of conservative judicial restraint, the Chief Justice should have allowed Obamacare to fall of its own weight, of a weight born of a political process in which the mandate could not be called a tax because the nation would not have stood for it.
He goes on to warn that we should not delude ourself. That the decision was a bitter loss.
The bottom line however is this.
We have a chance to overrule this decision by making wise choices in November.
We need to get busy convincing others that this coming election is going to be a "BIG —— DEAL".