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Roberts goes the other way of court's conservatives


It’s interesting to note that two prominent conservative judges have upheld the individual mandate under the Commerce Clause -- Judge Silberman of the D.C. Circuit and Judge Sutton of the 6th Circuit.

It’s interesting that Roberts went a way no other conservative judge from the lower courts had gone. He upheld it under Congress’ constitutional power to tax. Why does this matter? It suggests Roberts is guarding his legacy as the Chief Justice to show the Supreme Court has not become totally political and predictable. And that conservatives can be independent thinkers and not lock-step.

A veteran, conservative Supreme Court lawyer said Roberts will likely be seen as being intimidated by the Left. He added that he believes it’s clear the opinion was initially a 5-4 decision to strike down the law under the Commerce Clause and that  Roberts flipped in the end. He points out that it's unusual for there to be a jointly written dissent among four justices. In the decision, Roberts appears to be saying to the Right, "Look, I’m with you on the Commerce Clause, but it can be upheld under taxing authority."

In the end, there is also a big policy issue. The court said to Americans, you don't have to buy insurance under the mandate, but you have to pay the tax. What will Congress do next? That’s the big question – stay tuned.