[F]or Roberts personally and the conservative cause generally, his vote and opinion in the health care case were acts of strategic genius. … Roberts at a minimum laid down a marker on the scope of the commerce clause. … Roberts’s opinion is potentially a significant long-term gain for the conservative movement. … Roberts bought enormous political space for himself for future rulings.We usually believe that the conservative boogeymen are going to pwn us all with some amazing strategy that we walked into. It's one thing to not underestimate your enemies, but it's another thing to turn them into the Illuminati.
Roberts may have done those things. But the overly credulous Toobin (who seemed to think that the oral argument in the PPACA case like, really mattered) seems to, well, shoot first and then aim later.
Why am I skeptical? First of all, because I've never known conservatives to pull punches as part of some grand strategy. They are very good at putting points on the board. Take power first, ask questions later. This is why, for example, they filibuster everything knowing this may just end the filibuster, or when they were in the majority in the House they shut out the minority, knowing that it was likely when the shoe was on the other foot it would happen to them. What on earth is winning elections and putting justices on the bench for if they won't strike down the number one opposition item of the GOP? I know some will disagree; that this gives them an issue--just like abortion. But there would be different political consequences for banning abortion and overturning the PPACA.
Second, largely for the foregoing reasons, I think that any super-duper smart political strategist would know that Obama's reelection was made all the more likely by upholding the PPACA. And that means another four years where the replacement for a conservative justice would be appointed by Obama.
What's the long game here? Keep Obama in the White House so he can appoint 1-3 more liberal justices putting the Chief in the permanent minority?
No. No way.
Toobin is being spun by delusional conservative clerks who just experienced their "When Prophecy Fails" moment and cannot believe they lost their Waterloo. If this is the kind of strategy the best legal and political minds of the conservative movement can muster, then the country will be better off for it. They just can't believe they lost and they think that what's going to happen is that Roberts is going to reanimate the commerce clause attack on the welfare state? Scalia already blinked on that. Kennedy already blinked on that.
Ockham's razor applies here. The simplest explanation is that Roberts became a man of the institution and wanted to preserve it. He knew that striking down the ACA would destroy what little legitimacy the court had left. It's that simple. It's not part of some sekrit master plan.