Why Did Roberts Do It? To save the court.

Sometimes you just have to take one for the team. A wistful thought of that kind must have flitted through the mind of Chief Justice John Roberts today as he announced that the Supreme Court was upholding the Affordable Care Act by the slimmest of margins.

The lineup was a shocker: Roberts joined the court’s four moderate/liberal justices in upholding the act. Court-watchers knew Roberts would be in the majority, whichever way the case came out, but we expected Justice Anthony Kennedy to be there, too. He wasn’t: Kennedy joined fellow conservative Justices Scalia, Thomas, and Alito in a vehement (and—departing from court practice—jointly signed) dissent. Indeed, the chief justice was the only justice who cast a vote on the individual mandate that was contrary to the political position of the party of the president who appointed him.

Why did he do it? Quite simply, to save the court. As Jeffrey Rosen has noted, the ACA case was John Roberts’ moment of truth—and today’s opinion proves that Roberts knew it. In the aftermath of Bush v. Gore and Citizens United, the percentage of Americans who say they have “quite a lot” or a “great deal” of confidence in the Supreme Court has dipped to the mid-30s. A 5-4 decision to strike down Obamacare along party lines, whatever its reasoning, would have been received by the general public as yet more proof that the court is merely an extension of the nation’s polarized politics. Add the fact that the legal challenges to the individual mandate were at best novel and at worst frivolous, and suddenly a one-vote takedown of the ACA looks like it might undermine the court’s very legitimacy.

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http://www.slate.com/articles/news_and_politics/jurisprudence/2012/06/john_roberts_broke_with_conservatives_to_preserve_the_supreme_court_s_legitimacy.html

Add to "Bush v. Gore" and "Citizens United" the appearances of Scalia, Thomas, and Alito at right-wing political fundraisers like the Heritage Foundation (where Thomas's wife has received hundreds of thousands of dollars) and one could surmise that Rosen is on to something.

Maybe the present SCOTUS is simply incapable of interpreting the Constitution?