My theory remains that Roberts and Kennedy will balk at overturning the healthcare act, especially just four months from a national referendum on the same question. Roberts is a true conservative who believes in the separate roles of the three branches of government. Legislating is the legislature’s job, subject to the corrective action of the voters. Obamacare is legislation, however flawed it may be, and it’s up to the voters to express their opinion of the 2,000-page law if they don’t like it in the next presidential election…

If Roberts votes to uphold the law, however, he has a road map for that decision in U.S. District Judge Jeffrey Sutton’s concurrence to the Sixth Circuit’s decision upholding Obamacare almost precisely a year ago. Sutton, a George W. Bush appointee who was also reportedly one of Justice Antonin Scalia’s favorite clerks, gave full weight to all of the arguments against the constitutionality of the health reform act. Then, in a concurrence that was longer than the main opinion, he rejected those arguments one by one…

Sutton acknowledged that critics of the law had a powerful argument that the government was for the first time compelling people to buy something, as opposed to prohibiting them from doing something. But even this line had been crossed before, including with laws requiring sex offenders to register with local authorities and absent parents to pay child support, he said.

In the end, he wrote, McCulloch v. Maryland is the best precedent for this case.