Why Pick on Chief Justice Roberts?
Indeed, that's what George Will seems to be doing in his WaPo column this weekend.
Justice Anthony Kennedy is generally considered today’s swing vote, but his acerbic first question to the administration’s lawyer during the second day of oral argument changed assumptions: “Can you create commerce in order to regulate it?”
Concluding that Kennedy might be disposed to overturn the mandate, some Obamacare defenders decided that Roberts’s vote will be decisive. They hope to secure it by causing Roberts to worry about his reputation and that of his institution.
BooMan goes on to comment on Will's premise:
I feel like the two most likely results are a 6-3 decision to uphold, with Thomas, Scalia, and Alito dissenting, or a 5-4 decision to strike down the mandate, with all the liberals dissenting. I don't see a scenario where Kennedy votes to strike the mandate but Roberts saves it.
That's why I think George Will's premise is stupid. But maybe he doesn't want the embarrassment of losing this case by more than a 5-4 split.
There's more to it then that. Recall Karl Rove's law: If conservatives are accusing liberals of doing something, conservatives are the ones actually doing it and it's projection. Period. From that we can assume that the pressure here is being put by conservatives on Justice Roberts. But why? BooMan has a point that it's Kennedy they should be pressuring, not Roberts.
I can think of at least two reasons. One, they are going after Roberts to convince Kennedy. Two, they are setting up a scenario where a 5-4 decision where Kennedy upholds the law and mandate and Roberts doesn't as illegitimate because Roberts is Chief Justice.
Pretty sobering thought. But yes, Will is clearly scared that the law will be upheld here and that conservtives will miss their "chance to rewire the entire country" regardless of who ends up President in January.
Keep an eye on this line of attack from the Village.