Is Roberts Sandbagging?

Daniel Epps:

Chief Justice Marshall did something no one expected: writing for the Court, he ruled that Marbury's rights had been violated, thereby refusing to give a judicial imprimatur to Jefferson and Madison's actions. But his opinion did not issue a writ of mandamus that the Administration could simply ignore. Instead, it provided no remedy to Marbury, because of a technicality: The statute under which he had sought mandamus relief authorized such petitions to be filed directly in the Supreme Court. But Marshall concluded that that statute was unconstitutional, because in the Court's reading it could only authorize appellate jurisdiction over mandamus suits. In doing so, the Court built its own power and prestige by establishing that it had a power it was not necessarily assumed to have before: the authority the strike down federal statutes that violated the Constitution. But in doing so, the Court gave Jefferson absolutely nothing he could use politically: the opinion clearly rebuked his actions, but it didn't give him an order he could defy.
The parallels here are eerie. President Obama was ready for the Court to uphold the mandate -- in which case he would have trumpeted the decision as a vindication of the law and a rejection of Republican criticism that Democrats had overreached. And he similarly, was ready for the Court to strike down the mandate, or even the whole Act (apparently, he had three different speeches prepared for all the possibilities). He'll never read those speeches, but he almost certainly would have challenged the Court head-on and tried to make its conservative bent into a wedge issue in his campaign -- he has been quite willing to politicize the Court in the past. There was no prospect that Obama would have ignored the ruling -- as Jefferson might have ignored a mandamus writ -- but the ensuing political struggle could have damaged the Court's credibility. And it might very well have hurt Roberts's legacy in particular, given that there had been a focused attempt in the press to paint a narrative about him as the leader of a Court out to get Democrats and Obama.
So the president was ready for the Court to break right or break left. But instead, Chief Justice Roberts juked. He agreed with the challengers that the mandate couldn't be justified under the Commerce Clause or even the Necessary and Proper Clause -- thereby reinforcing the narrative that the Democratic Congress overreached in passing the bill. His opinion -- though not the result -- may provide much help in the future to judicial conservatives, as it suggests that, with the dissent, five justices are in favor of a more aggressive role for the Court in policing the bounds of the Commerce Clause (and the Spending Clause, which was at issue in the Medicaid legislation). And while Roberts ultimately voted to uphold the Act, he did so on a ground that, for Obama, plays terribly: that it's a tax.

I think this is the most likely explanation.  Don't be surprised if the conservatives bring a carefully crafted test case to cut the legs out from under Wickard v. Filburn and neuters the commerce clause.
Who knows what will happen, but it is funny reading a former high school classmate on Facebook saying this is the end of the United States as we know it, especially considering he works for the Postal Service.  Way to fight against the federal government there, champ.