Conservatives scoff at such suggestions. They say Roberts appears to have caved in to bullying and threats from President Obama and others who launched what they say was a sustained campaign of intimidation once it looked as if the court was poised to overturn the health-care mandate.
“Whatever explanation [exists] is not legitimate, because we all agree that it is not a good thing for justices – chief justices – or judges to act politically, to try to split the differences, to try to balance competing imperatives,” Washington lawyer David Rivkin said during a recent panel discussion at the libertarian Cato Institute.
Mr. Rivkin, who served as a lawyer challenging the health-care law, said a similar “campaign of intimidation” would likely arise in future high-stakes cases.
The court’s docket suggests it may not be a long wait.
On Oct. 10, the Supreme Court is set to examine the constitutionality of racial preferences in college admissions at the University of Texas.
In addition, the high court is expected to soon consider whether to take up appeals involving California’s Proposition 8 ban on same-sex marriages and whether the Defense of Marriage Act's prohibition on same-sex spouses collecting federal benefits violates the Constitution’s guarantee of equal treatment.
If the high court agrees to hear one or both of these issues, the new term would become a major test of the scope of gay rights in the United States and the Supreme Court would once again become a flash point in the ongoing culture war.
The justices are also likely to take up at least one of more than five pending appeals raising the same issue the court confronted and dodged in 2009 – whether Section 5 of the Voting Rights Act is an unconstitutional extension of congressional power.