The promises Roberts made during his confirmation hearings cut both ways. If Roberts doesn't believe in legislating from the bench, as the Warren court did in the face of legislative inaction, he made clear today that he also doesn't believe in using the Court to overturn ill conceived or simply unworkable laws if there are any arguments under which they can be upheld -- at least in cases that do not directly involve the Bill of Rights. As I look at the opinion I suspect Justice Roberts may be playing long ball here. There is now another case that suggests the Commerce Clause has its limits. The power of the states was upheld by finding unconstitutional those parts of the bill that ordered the States to regulate Medicaid according to Congress's instructions or lose all funding. Finally by upholding the mandate as a tax Roberts may have given Obama a Pyrrhic victory akin to that in Marbury v Madison, a case that found that while the plaintiff had been injured he was barking up the wrong tree for his remedy. Indeed Roberts concluding words may be the most important ones in the decision.
"But the court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgement is reserved to the people."
Because the Court narrowly upheld a very unpopular law on an unpopular argument the Democrats may crow today. For a lot of tomorrows they are going to be left with political repercussions from unilaterally passing a massive tax increase that is likely to become even more unpopular as both the true costs and the restraints on medical providers become known. The party of people who love to sport the pro abortion bumper sticker Keep Your Laws Off My Body has now officially become the party that has made the IRS the new health care enforcer Now that's a long term political winner! The Democrats may also suffer the death of a thousand cuts in the future as the court system deals with the concrete attempts to implement the law. The lawsuits filed by Catholic Institutions that HHS regulations are a violation of their rights under the First Amendment are likely to be the first in a wave of such suits because the ACA left so many blanks to be filled in at a later date by various branches of the government.