isn’t necessarily the Chief Justice John Roberts-written opinion – or rather it is necessarily going to be the Roberts-written opinion for very long. In his majority opinion, Roberts wrote that the interstate commerce clause does not give Congress the power to mandate that individuals purchase a particular class of product. Some are taking that as good news. Fine. I’ll take what I can get.
But Justice Ginsburg wrote a concurrence joined by the other three liberal Justices that upholds the mandate on commerce clause grounds. That includes the two Justices appointed by President Obama. To the extent that this ruling makes it more likely that President will be elected to a second term, it becomes that much more likely that one of the five non-liberal Justices (and two of them are in their mid-seventies) will be replaced by a liberal Justice. In that case, with a liberal majority on the Court, the Ginsburg concurrence will, in practice, become the majority opinion if a similar case comes up. The “good news” might be short-lived.