“Well, at least it’s clear that they can’t order you to buy broccoli,” Mr. McCollum said, a final nod to the vegetable that played a central role in the plaintiffs’ case. “There are now very specific limits to the commerce clause.”Keep the faith, Mr. McCollum, don't let the evidence stop you.
Yes, I thought I was done with this, but now we have a media account (from someone known to consider things from a conservative point of view, see her book, which I guess optimistically can be seen as a good balancing technique) with insider information about Roberts' thought processes. It helps explain why the dissent did not join with Roberts, even when they agreed with his bottom line -- pique apparently. The net result, though Roberts insists (somewhat convincingly, but not for some) otherwise, some argue the whole Commerce Clause bit is dicta.
Randy Barnett (in his white knight suit) was on Chris Hayes over the weekend and argued that eight justices voted their conscience, Roberts acted like a politician. Sorry Mr. Advocate, no dice -- Breyer and Kagan joined the Medicaid coercion argument and it is dubious to think they did so just on the merits. [To be fair - as a comment at the link suggests -- they had problems with it, but seems to be statutory, but even there the leak article underlines the dissent had motives beyond a simple application of the law itself too.] But, as I said there, let's say Roberts did compromise. This isn't invalid -- juries compromise, CJ Marshall compromised ... the Constitution itself is not merely some clear-cut document, but a compromise with hard questions papered over with some vague terms and conflicting principles (free speech v. fair trials etc.). And, his tax v. "command" views were hinted at months back.
Justices are human beings and do have some degree of humility and limitations. Majority opinions repeatedly involve justices consenting to some opinion that they might not agree with 100%, though some like Justice Thomas might rather a split ruling (like the Confrontation Clause case) that confuses the law of the land. Back in the 1790s in cases like Hylton v. U.S. and Calder v. Bull justices said a federal law would only be struck down in a "very clear" or "clear and urgent" case. An extra degree of restraint because two bodies of Congress and the President, voted for by the public or their representatives, each swearing or affirming to uphold the Constitution, by act said the law was constitutional.
Some are cynical that Roberts did this just for pragmatic reasons, to protect the reputation of the Court and/or allow him to strike down affirmative action legislation or something in the future. But, reputation was deemed an important check by the Framers, remains so. We restrain ourselves for various reasons, including as a matter of honor and the realization that dishonor has various negative consequences. I think Roberts deserves a bit less praise overall than some might be giving him, but he deserves a bit of respect here. It just, don't laugh, also be that he took the tax argument somewhat seriously.
The rejoinder might be, "what if abortion" is up there, or free speech? Well, the general answer is the famous Footnote 4, regardless if it was originally only accepted by a plurality. An otherwise obscure case about milk regulation, it set forth a principle that economic regulation would generally be give a broad presumption of constitutionality unless it "appears on its face to be within a specific prohibition of the Constitution" (not a vague open-ended barrier like the 10th Amendment), "restricts those political processes" normally relied on or if burdens "discrete and insular minorities may be a special condition."
Political processes (or things such as clear statement rules that can be enforced by the courts) were noted as important checks when using the tax argument. Madison in a speech in promotion of the Bill of Rights noted "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights." Not every right under the sun. The Tenth Amendment can be included here, so this alone cannot answer the critics, but even there an open-ended view of the courts as interpretation of the Constitution as a whole does not seem to be present. Long held clear precedent can also bring forth clarity, but there isn't any really that justifies the CC ruling.
The 1990s brought forth more of a concern for judicial checks to promote federalism overall, even "when appeal is made to liberties which derive merely from shifting economic arrangement." But, even there, an open-ended libertarian Constitution was not really in place. There is a limit of judicial capital available, a limit of judicial competency. Certain subjects are going to be seen as more the job of the judiciary though they will be loathe to close the door totally to anything. And, time showed that economic rights are not ignored -- the last time Roberts joined merely with the four liberals might be a rightful notice case involving property. Commercial speech, Taking Clause issues, commercial issues that touch upon other liberties like purchase of contraceptives, etc. show this.
Even if Kagan honestly meant it when she said -- with reference to the turtle metaphor used earlier -- that "it is law all the way down," law itself is developed in complex ways. Not always ideal but probably more interesting and realistic than the pure form some wish for.