Not only was he on both sides of the issue, he reportedly wrote both sides of the issue:
The explanation for this, according to the source, is very simple: Roberts’ chamber did much of the drafting of the former section, and none of the latter. In short, it appears Chief Justice Roberts ended up in large part authoring both the majority opinion and the dissent in National Federation of Independent Business v. Sebelius. This would seem to give a whole new meaning to the term “swing justice.”
Sorry to keep harping on this, but all the fawning media and swooning progressives (Chris Matthews now has a tingle up both his legs) totally depress me. Roberts vote was a self-serving, cynical move, nothing more.
It is tempting to see, in the Chief Justice’s work in the health-care case, the possibility of some very long-range thinking. By siding with the liberals, Roberts insulates himself from charges of partisanship for the foreseeable future. This may be worth remembering next year, when the Court, led by the Chief Justice, is likely to strike down both the use of affirmative action in college admissions and the heart of the Voting Rights Act of 1965. And if, in the same year, the Justices uphold the noxious Defense of Marriage Act, many will deem Roberts’s motives beyond reproach.
It is also worth remembering that Roberts’s narrow conception of the Commerce Clause is now the law of the land. This new rule may limit the ability of Congress to expand the size of the government, and, indeed, may invite challenges to some government programs that are currently on the books, such as federal consumer safety or even seat-belt laws. In Ginsburg’s apt phrase, Roberts’s reading of the Commerce Clause is “stunningly retrogressive”—that is, a throwback to the pre-1937 state of the law. That may be Roberts’s goal. His doctrinal investments may take a while to pay off, but he has the luxury of guaranteed professional longevity. Roberts could still be Chief Justice when Obama is teaching the jump shot to Malia’s and Sasha’s children. By then, if Roberts has succeeded in limiting the scope of federal power, the health-care decision may look very different from how it looks today.
*I think Roberts made the *right* move for the wrong reasons and I emphasize “right” because there is another developing theory that he is fact playing the long game, slowly undermining the commerce clause, which has been the basis for so much progressive legislation. He now has the Supremes on the record in this case, providing a precedent to which he can refer while joining the conservative side of future arguments. I don’t trust the guy, haven’t since his confirmation hearings wherein he, if not lied, certainly obfuscated.