Fascinating, unexpected and depressing.

What is unexpected is that a conservative-leaning justice provided the tie-breaking vote. It's fascinating that he upheld the law with the reasoning that the individual mandate is a tax -- which is an argument the Obama administration explicitly argued was not true.

Of course, it's depressing too. Not just because this represents a nudge towards socialistic crony-capitalism, but because I can't help but think that the left-wing and media assault on the Supreme Court seems to have worked.

The Chief Justice, concerned with the perception of the court and his "legacy", might have subverted his principles on a case like this. He didn't want to be the Chief Justice who would be cited for being "partisan" and re-opening how we understand the Commerce Clause. He didn't want to be reviled by the left and the media (same thing?) forever for making the tough choice.

There's support for this as experts and bloggers have begun dissecting the rulings. Key are slices of Scalia's dissent, which suggest his opinion was originally a concurring majority opinion. In other words, Scalia's opinion suggests that the Chief Justice changed his vote at the last minute.

http://lsolum.typepad.com/legaltheor...itutional.html

Evidence that the Votes Shifted After Conference (Initial Vote to Declare Mandate Unconstitutional)

After a preliminary read of the opinions in the Health Care Cases (National Federation of Independent Business v. Sibelius), there seems to be substantial evidence that the initial vote in conference was to strike down the mandate as unconstitutional. The opinion of Justice Scalia, Kennedy, Thomas, and Alito looks like parts of it were once a majority opinion. And there are passages that still read as a majority opinion responding to a dissent by Justice Ginsburg. For example:

The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government.
Language like this is highly suggestive of a majority opinion. The reference to the dissent and "we" strongly suggests that the "we" was a majority of the Court. This suggests that Justice Roberts switched his vote. There are other conceiveable explanations, but in my opinion, this evidence is very strong indeed.
Nonetheless, as I have said before, the left won't like the precedent established today. They won't like it when right-wing politicians start passing bills forcing people to buy private stocks or mutual funds in place of pensions. They won't like it when right-wing politicians propose taxing people who haven't had children to pay for daycare for those who do. They won't like it when this is turned on its head in ways that haven't been conceived-of.

A sad day for the republic. The only bright side is we can now start acknowledging that Obamacare is, at the least, a massive tax and spend program.