Reading the opinion of the Chief Justice, it is hard to avoid the conclusion that he was working very hard to find arguments that might enable him to walk a precarious tightrope, and that at the end of the day he just had to pretend those arguments existed. In the months leading up to this decision, many of us thought the Court faced a choice between throwing out a major act of legislation and throwing out any limits on the Commerce Clause. My sense from this opinion is that Roberts desperately sought a way to do neither: He wanted to avoid striking down the law (and four of his colleagues evidently concluded that the whole law would have to go if the mandate did), but he wanted to avoid extending even further the meaning of the Commerce Clause.
And the nature of the action he has taken, as a matter of the Court’s disposition toward laws brought before it in disputes, is strikingly micro-managerial. Roberts has rewritten the law in several crucial respects rather than rule it unconstitutional. It’s not clear how his own theory of the Court’s role (even as articulated in this opinion) justifies doing this, but it seems his concern for the Court’s standing justified it in his eyes. This rewriting of the law — the fact that Obamacare was not simply upheld today — has several significant practical implications.