CHARLES KRAUTHAMMER: I think the biggest irony is that Scalia and Roberts agree on the motive behind Roberts' ruling. They agree, in fact Roberts sort of confesses this, he says that he doesn't want the Court to overturn this.And if there's anyway that he can find to justify the exchanges he will find it. In other words, he sees his role as being the sleuth who goes into the law and somehow justifies it. He made the same argument the last time he saved Obamacare when it was challenged because it was an illegal penalty. So he decided that it wasn't really a penalty, despite the fact that in the government briefs they had admitted that but it was a tax. So he invented something that wasn't in the law because he said he didn't want to overturn it.
Scalia says the same thing. Scalia is saying that the principle Roberts is upholding is not the plain interpretation of the law. Roberts admits that the plain interpretation of the language of the law would strike down Obamacare. He admits it. But he has a higher principle. And the question is, why does he want to preserve Obamacare? I'm not sure it's because he believes in the policy. I think he's afraid that if the Court overturns something so broad, so deep, so important that was debated for a year and a half, it will damage the Court. And he sees his role as a protector of the reputation of the Court. I think he's entirely wrong in doing that. But it's the only plausible explanation I can find.
JUDGE ANDREW NAPOLITANO: You know, Charles is exactly right. But it's even worse. Because in the prior case, three years ago, nobody argued that it was a tax.Both sides said it was not. He said it's a tax. In this case both sides said the language is not ambiguous. He said it's ambiguous. He's pulling these non-ideological technical rules out of nowhere in order to salvage this statute.