There is a lot of theorizing going around about Chief Justice Roberts being a wily chess player, who has outwitted the Marxist Left by his crafty opinion yesterday. One need only read the Kennedy dissent (and the short Thomas dissent) to see how fanciful this notion is. I am more in agreement with analysis that Roberts is a typical lover of elite approval and establishment thought (see C.S. Lewis, "The Inner Ring"). Here are some ‘dissenting opinions’ from the chess player idea:
This is a bit of nonsense. First, the ruling hardly does anything to expand existing limitations on Congress’ legislative power under the Commerce Clause. Second, Roberts gave an expansive reading of Congress’ power under the Taxing Clause, susceptible to the exact same slippery slope (broccoli) arguments that were made against upholding ACA under the Commerce Clause. Third, Roberts has consistently demonstrated that he’s simply not that concerned about states rights and federal power (the immigration case immediately comes to mind). If anything, he knows that’s a losing battle. The Healthcare Cases are better understood as an attempt by Roberts to save the political capital of the Court for other fights — such as affirmative action, voting rights, marriage equality, corporate speech — and not as a sneaky way to further the federalism agenda.
What Roberts’ decision today tells us is that he is unlikely to ever cast a decisive vote against the consensus of the Washington elite. This means that the Roberts court will never overturn Roe v. Wade, because such a decision would create even more controversy than overturning Obamacare would have. And it also means that Roberts is unlikely to resist the strong political pressure that exists in elite circles to create a constitutional right to gay marriage.
The author ignores the fact that "the Roberts Court" (that is, Roberts, Ginsburg, Breyer, Sotomayor, and Kagan) also expanded the power of Congress to "lay and collect Taxes" beyond anything ever claimed before. Rather than noting that Congress can now force any American citizen to purchase something he does not desire or need simply by levying a a tax on him if he does not, he even tries to make lemonade out of Roberts’ declaration that the penalty imposed by Congress for failure to purchase health insurance is "legally a tax":
Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.
Who cares that Congress has just been granted total power over how you choose to spend your money—at least Mitt and the rest of the Republicans can start cranking out those campaign ads!
Those who want to provide cover for Chief Justice Roberts or for the Republican presidential candidate who has promised to "nominate judges in the mold of Chief Justice Roberts" will undoubtedly keep referring to the supposed limitation of the Commerce Clause. But that’s a lot like applauding a murderer for not stabbing his victim with a knife because he blew him away with a cannon.