It seems highly unlikely that any of the four liberal justices would have agreed to hear the case, since they would have believed the wording error shouldn't trump the law's clear intent, and they wouldn't have voted to put the law at risk. The three justices who went on to dissent -- Alito,
So was John Roberts the fourth justice to vote to hear the case, and if so, why? He's conservative, but he's politic. It's my guess that he believed the nonsensical conventional wisdom we've heard for years: that for all the fiery rhetoric that emanates from the right, the Republican Party isn't really a bunch of bomb-throwers. If Obamacare was doomed, surely cooler heads would prevail -- the Republican majorities in Congress would have a remedy ready to avert chaos. It would be certain to pass, and it would provide a gentle transition to a post-Obamacare future, because they are all honorable men.
That's my hunch -- and when Roberts (and presumably Kennedy) saw that elected Republicans really are crazy and really wouldn't be able to pass anything to avert an Obamacare death spiral, the law was saved. If my guess is right, a naive faith in the myth of GOP reasonableness was why the law was at risk at all.
I'm extremely happy that the health care law was saved, and I'm very happy that there's been a tremendous change in the politics of the Confederate flag -- but I wonder how much calculation there is behind this month's retreats from conservative purism. The preservation of Obamacare by the Roberts court does a couple of things for the GOP for 2016: It preserves Obamacare as a voter-motivating grievance for the party's base, and it makes it much more difficult for Hillary Clinton (or Bernie Sanders or whoever) to say that the Supreme Court is a force for wingnuttery that will only get worse if a Republican is elected president next year. Never mind the fact that the court will, in fact, be extraordinarily conservative if a Republican gets to restock it -- that warning will now ring hollow.
Roberts seems to be content to allow Republicans to run against him if it means Democrats can't -- and Nikki Haley and other Republican elected officials who've denounced Confederate symbols seem content to make that the public face of the party (in order not to alienate swing voters for 2016) while angrier voices (not just overt racists but pundits such as Bill Kristol and Todd Starnes) fan the pro-Confederacy backlash. In each case, it seems as if the GOP wants to keep rage alive while the best-known conservatives publicly reject that rage. I don't know if the good cop-bad cop strategy will work, but it reminds me of the heyday of birtherism, when A-list Republicans generally rejected the conspiracy theory while it flourished in less savory corners of the conservative universe. Next year, we'll see if all this works. It's certain, though, that the right looks much more reasonable now than it actually is, though I'm grateful for the concessions creating that illusion.