Over at Red State, Erick Ericson theorizes that Chief Justice John Roberts joined the majority opinion as a way to put ObamaCare back into the hands of the political branches to decide the law’s fate:
The Democrats have been saying for a while that individual pieces of Obamacare are quite popular. With John Roberts’ opinion, the repeal fight takes place on GOP turf, not Democrat turf. The all or nothing repeal has always been better ground for the GOP and now John Roberts has forced everyone onto that ground. Oh, and as I mentioned earlier, because John Roberts concluded it [the individual mandate] was a tax, the Democrats cannot filibuster its repeal because of the same reconciliation procedure the Democrats used to pass it.
It seems very, very clear to me in reviewing John Roberts’ decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.
Our own Doug Mataconis said he “would not be surprised to see it be a 6-3 decision” way back in April for the following reason:
Ordinarily, the most senior Justice in the majority gets to decide who writes the majority opinion. However, if the Chief Justice is in the majority he gets to make that decision. If Kennedy ends up voting to uphold the mandate then I could see Chief Justice Roberts joining him so that he can write the opinion himself and make the precedential value of the decision as limited as possible.
Erick Erickson also mentioned on his radio program that many conservatives and libertarians who aren’t thrilled with Romney as the nominee will put aside their objections and vote for him if it means repealing ObamaCare.
I hate to say it but I think Erickson has a point. ObamaCare being upheld is a game changer. Prior to this decision that was supposed to strike down all or part of ObamaCare, I was absolutely certain that I would enthusiastically vote for the Libertarian nominee Gary Johnson rather than settle for the lesser of the two evils. With ObamaCare being upheld, now I have to say I’m not so sure. I’m not normally a single issue voter but if ObamaCare isn’t stopped and soon, we will be stuck with it for at least a generation.
The problem is though, it might already be too late. Several things have to happen just right. First Romney must be elected and the GOP must take control of the Senate and hold the House. Second, we have to trust that Romney and the Republicans in congress will actually follow through. We’ve been disappointed before.