To put it briefly, the Obama Administration won the battle today, but Chief Justice John Roberts’ Majority opinion (i.e. the law of the land) was an incredible Trojan Horse for the conservative legal movement.
Ezra Klein writes of the “political genius of John Roberts” decision:
The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn’t. If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid. ”He was on-board with the basic challenge,” said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. “He was on the conservative side of the controversial issues.”
Chief architect of the opposition to Obamacare, Randy Barnett, reacts:
“We won … All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. Yet we end up with the opposite outcome. It’s just weird.”
Tom Socca in Slate writes that Roberts opinion and Kennedy’s dissent delivered the victory that mattered to conservatives:
By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well). . . . Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.
Erik Ericson identifies the macro-view Roberts seems to have taken:
It seems very, very clear to me in reviewing John Roberts’ decision that he is playing a much longer game than us and can afford to with a life tenure…Roberts is playing a different game…We’re on poker. He’s on chess.
Today is Obama’s day so give him his due. But for each step back in the conservative movement, it is very likely John Roberts moved the needle more than a few notches forward, right underneath the nose of the liberal jurists.