June 25, 2012

Obamacare: Reading the SCOTUS Tea Leaves, ctd.

One of James Fallows' readers, echoing the point I made in my previous post prognosticating on the outcome of the Affordable Care Act litigation (my emphasis):
Roberts joined the [ ] majority today [in Arizona v. United States] to give a 5-3 ruling (Kagan recused). Only a 4-4 ruling was needed to uphold an earlier decision to overturn the law. He joined a politically polarized decision, possibly extracting a compromise to save debate on stop-and-check for another day in return. Perhaps this was the price for being picked to write a 6-3 majority opinion on Obamacare with a similar compromise to make the bill more conservative (e.g. the Roberts Obamacare opinion might establish a commerce-clause limit that stops somewhere between health-insurance and broccoli mandates).

That would be two consecutive decisions on politically polarized issues in which Roberts crosses sides to (1) provide a larger than needed majority and (2) moderate the result to be more conservative. I imagine that this would instantly reverse a lot of negative opinion about the Roberts court in the legal community, which would give him much more room to make really sweeping, conservative change in other areas that'll be up for debate soon -- ending voting rights enforcement, requiring all union members to opt in on dues, eliminating personal campaign contribution limits, ending affirmative action, upholding the latest abortion restrictions, a broader ruling against firearms restrictions, etc. If you take the view that nationalized healthcare is inevitable and will probably go into effect while Roberts is still Chief Justice, it makes more sense to build up support for other priorities.
NB: Scotusblog speculates, based on the assignment of today's opinions, that Chief Justice Roberts will author the ACA opinion, but I think that he would be writing the opinion no matter which side of the case he falls, so I am not sure we can deduce anything from that.

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