It seems to me that several conservative columnists, including George Will, are essentially taunting Chief Justice John Roberts. They keep saying that Roberts will never be so weak as to uphold ObamaCare. They don’t say these things about Justice Kennedy, which is strange because the conservatives need both Roberts and Kennedy to vote against ObamaCare if it is going to be ruled unconstitutional. I kind of feel like they are worried that they’ll lose this decision in a 6-3 vote, or worse. Before I heard the oral arguments, I figured the decision would be 8-1 to uphold the individual mandate. Clarence Thomas would have been the lone holdout. The law and precedents are pretty clear.
But it could be that the conservatives on the Court have just been gathering strength, waiting until they had enough power and the right case to totally transform the federal government’s relationship to the states. This could be their moment. Or, maybe not. Maybe Kennedy is not on board. Maybe Roberts is less radical than he seems.
I feel like the two most likely results are a 6-3 decision to uphold, with Thomas, Scalia, and Alito dissenting, or a 5-4 decision to strike down the mandate, with all the liberals dissenting. I don’t see a scenario where Kennedy votes to strike the mandate but Roberts saves it.
That’s why I think George Will’s premise is stupid. But maybe he doesn’t want the embarrassment of losing this case by more than a 5-4 split.
