1. I am less surprised by the outcome of this case (I switched my expectations after reading Orin Kerr’s dissection of Justice Ginsburg’s recent speech at the American Constitution Society convention) than I am by the vote: I expected that if the Court voted to uphold the mandate, it would have been a 6-3 vote, with Kennedy voting (internally) to uphold the law and the Chief going along with Kennedy. Instead, Kennedy was the co-author of a rare jointly-authored dissent for all of the dissenting Justices, one which not only rejected the commerce clause and other arguments for the mandate, but also would have struck down the entire health care law.
2. What explains Roberts vote? David Bernstein remarks, with some truth, that Roberts is much more pro-government than Justice Alito. But I think too other factors are important here too. First, Roberts cares much more about the institutional legitimacy of the Court and elite public opinion than the other Justices. Larry Solum rightly remarks that it would have been a tectonic shift for the Court to have struck down such a major federal law, especially when the (original) expectations of almost all Court scholars of all political stripes was that the Court’s precedents made this an easy case to sustain the mandate. Roberts wanted to avoid this result. Second, Roberts’ passion is elsewhere. He’d rather use his political capital on issues in which he is passionate, most importantly on the issue of race. With affirmative action and the Voting Rights Act coming before the Court, don’t expect Roberts to side with liberals in those cases.
3. Roberts also wrote his opinion in a way to narrow the scope of the commerce power, and to legitimate the Randy Barnett theory for future cases. I have not yet parsed the opinion enough to know how big a deal this is, but there are now 5 Justices rejecting the older, established commerce clause jurisprudence which gave Congress almost unlimited power when it came to economic legislation.
4. Ironically, Roberts went out of his way to reach those commerce clause issues, which he did not need to reach given his holding on the tax power. Once again, the Chief has manipulated the doctrine of constitutional avoidance to do what he wanted to do in a high profile, important case. His opinion also splits the finest hairs in finding the law to be a tax for constitutional purposes but not for the anti-injunction act.
5. Finally, I wonder about leaks from the Court about Roberts changing his mind. David Bernstein remarks that “Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate.” This would explain why George Will, Kathleen Parker and others wrote opinion pieces to try to buck up the Chief Justice. In this Politico oped, I noted how ludicrous it was to talk about the Chief facing threats, pressure, and bullying. But if the Chief is sensitive to the institutional legitimacy of the Court and a desire to preserve his political capital for other reasons, then it is possible he was waffling in the face of the torrent of commentary. But how did the waffling leak out? An interesting question to say the least.