As legal scholars study the Supreme Court's decision in the Obamacare case, more and more are concluding that Justice Anthony Kennedy's dissenting opinion, striking down the law in its entirety, was once the majority opinion--and that Chief Justice John Roberts switched his vote at a late stage. If so, it would appear that the Chief Justice may have succumbed to the bullying meted out by President Barack Obama, who attacked the Court in the aftermath of oral arguments in March, when Obamacare seemed headed for certain defeat.
As National Review's Ed Whelan, the Volokh Conspiracy's David Bernstein, andothers are pointing out, the dissent refers to another opinion as "the dissent" and uses the pronoun "we," as if speaking for the Court, as majority opinions typically do. In addition, the dissent focuses on the government's arguments, rather than tackling the majority head-on. That suggests that a switch--most likely by the Chief Justice himself--may have come very late in the game, too late to offer more than the most cursory revisions of the opinions in the case.
The fact that the Chief Justice's reasoning is so flimsy is yet another piece of evidence that he may have made a late switch--and under pressure. Congress did not intend the individual mandate to be a tax--neither in the text of the legislation, nor in its public deliberations inside and outside the Capitol. (If it had chosen to go that route, the left might have put forward a far stronger argument for universal government-run health care.) It is correct that Chief Justice Roberts has tended to defer to Congress, as conservatives do--but while this opinion has the form of deference, in substance it is the opposite of deferential, rewriting Obamacare by judicial fiat.
One final point is worth noting: that President Obama was enthusiastically joined in his attacks on the Court by the mainstream media, not just after oral arguments but right up to the eve of the decision. Roger Simon of Politico penned one of the most notorious attacks, but he was not alone--and if Anthony Weiner had not removed himself from the scene, we would have seen Democrats carry out their strategy of trashing the Court as a "corporate dominated arm of the Republican party." The truth may, in fact, be that the Court is dominated easily--not by corporate interests, but by Obama's imperial presidency and an intolerant mainstream media.
If Chief Justice Roberts thought he was preserving public trust in the Supreme Court today, he will quickly learn he has done the opposite--not least because Democrats define bipartisanship as complete capitulation. Liberals--still smarting over Bush v. Gore--and conservatives now both have reason to distrust the court and its motives. If that "bipartisanship" is the legacy of the Chief Justice's apparent switch, it is a bitter bequest.