Yesterday, on June 28, 2012, the Supreme Court of the United States in National Federation of Independent Business v. Sebelius upheld, by a margin of 5 votes to 4, most of the provisions of Affordable Health Care Act. At stake was nothing less than the single most important legislative achievement of the Obama Administration and one of the most significant efforts at addressing a national economic issue since the 1960s, when a Democratic majority lead by President Lyndon Johnson passed both the Civil Rights and Medicare Acts. The surprise swing vote came from the court’s Chief Justice, John Roberts, a Bush appointee meant to be a secure vote for the right — in nominating Roberts, Bush was trying to appoint a chief justice who would not go “rogue,” as had his father’s appointee, David Souter, whose opinions over time leaned ever more to the left.

Commentators are already likening Roberts’s vote to the famous “switch in time that saved nine” in 1937 when Associate Justice Owen Roberts underwent a change of heart resulting in a 5 to 4 vote upholding a key piece of New Deal Legislation. In the years leading up to this switch, the Supreme Court had negated several major Federal efforts aimed at addressing the crisis of the Great Depression. Decrying the tyranny of the Court’s “nine old men,” President Roosevelt called for Congress to expand the court’s numbers from nine to as many as fifteen — to open up new appointments for him to “pack” the Court with appointees favorable to the New Deal agenda. Recognizing that the very independence of the judiciary was at stake, the court then began a reversal of course that eventually lead to it routinely upholding economic regulations that it formerly would have overturned, either on the grounds of interference with “due process” or because they were deemed beyond the reach of the federal government.

In the early 1940s the court also settled — or so we thought — the reach of the federal government’s power under the commerce clause, which authorizes Congress “to regulate commerce among the several states.” Those cases cumulatively concluded that just about everything is “interstate commerce.” Even the activity of a lone farmer who produced wheat for his private consumption was found, in 1942, to be subject to Congressional regulation. Understandable, then, that the Obama administration, as recently reported in the New York Times, foresaw little risk that a successful challenge could be mounted against the power of Congress to enact the Affordable Health Care Act. The administration greatly underestimated the magnitude of the tectonic shift in the court’s jurisprudence in recent decades, the result of a relentless series of appointments by Republican presidents of judges who passed right wing litmus tests. The Roberts opinion upholding the Affordable Care Act actually concluded that it was beyond Congress’s power under the commerce clause because it mandated action rather than regulating pre-existing conduct. Instead, to uphold the law, Robert embraced what most analysts thought to be the Administration’s throw away argument, that the Act was a valid exercise of Congress’s power to tax. The rationale suggests that the decision may be a Pyrrhic victory for liberals. Embedded in Roberts’ opinion is a major limitation on the Federal government’s power to regulate commerce. The...