In a stunning decision that will define his legacy as chief justice, John Roberts broke with the Supreme Court’s conservative bloc and provided the fifth vote to uphold the constitutionality of the Affordable Care Act. While declining to uphold the Act under the Commerce Clause, Roberts argued that the mandate could pass constitutional muster as an exercise of Congress’s power to tax. In so doing, he refrained from providing a precedent for what many conservatives regard as an unprecedented expansion of an already expanded New Deal Commerce Clause about which they have grave reservations.
One can only speculate about Roberts’ motives for proceeding as he did. It is certainly possible that, like Chief Justice Charles Evans Hughes in the mid-1930s, he had one eye focused on jurisprudence and another on the standing of the institution he heads. This may be another “switch in time” that saved the Court from becoming embroiled in a full-fledged confrontation with the executive and legislative branches.
What is beyond speculation is that this comes as a massive disappointment to movement conservatives who have spent decades strengthening their position in the judicial branch with the ultimate objective of halting and reversing the growing reach of the federal government. Expect recriminations and accusations alleging that, once again, a pivotal conservative has yielded to liberal elite opinion.
If conservatives are to realize their hopes of repealing the Affordable Care Act, the electoral process is their only remaining recourse. Once the dust settles, expect them to mobilize and work even harder for unified government under Republican control. And expect Mitt Romney to wave the bloody shirt all the more vigorously.