In an American Bar Association survey of legal experts, 69% determined that the most likely conservative to uphold the ACA is not Anthony Kennedy, but Chief Justice John Roberts. One of Jon Cohn's readers explains why:
A historically minded judge — such as Roberts — will be well served to recall the difficulties that Federal courts encountered during the 60 years preceding Wickard in distinguishing between Federal statutes that legitimately affected "commerce between the several states" and those that allegedly did not — cases involving things such as antitrust laws, the Pure Food and Drug Act, restrictions on child labor and alcohol distribution and the creation of the NLRB. That is another reason for why the Roberts Court will, in my opinion, decide that legal challenges to the individual mandate are too much of a departure from legal precedent and too fast of an assault on the citadel of Federal powers. Such a decision would be profoundly conservative — in the best sense of the word.
Conn Carroll nevertheless expects that Republicans will never forgive Bush if his appointee joins the liberal majority:
If Roberts does end up being the fifth and deciding vote to uphold Obamacare, Bush's Supreme Court legacy will be regarded as a failure too. His reputation among conservatives will never recover.
(Photo: John Roberts is sworn in as the 17th Chief Justice of the U.S. Supreme Court by Supreme Court Justice John Paul Stevens in the East Room of the White House on September 29, 2005. By Dennis Brack/Bloomberg via Getty Images)
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