The Chief Justice's gambit

Thursday’s health care ruling shocked most observers. It upheld the health care law as constitutional. But rather than find that the law was justified under Congress’ authority to regulate commerce, it instead found it was justified only under Congress’ power to tax. It also imposed limits upon Congress’ ability to condition spending grants to the states upon those states taking certain steps. To my knowledge, former Solicitor General Walter Dellinger was the only person who thought that the court would ultimately rule on those grounds. I certainly was surprised. …

But I think if you scratch the surface here, Roberts embarked upon a gambit much like Marshall did 200 years ago. For the results-oriented — which is to say, most observers on both sides who have been ranting about the Constitution for the past few months — this is a clear win for the Obama administration, at least in the short term. By removing most legal impediments to the implementation of the law, the odds that the president’s signature legislation will eventually be implemented have risen. …

All told, it is easier for the conservative wing of the court to make some significant rulings in some other policy areas. In so doing, he actually made significant progress for judicial conservatives while ruling against conservative policy. And he might still see that policy repealed if Republicans win in the fall.