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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...(Read Full Post)

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