I think on balance I'm most persuaded, so far, by Scott Lemieux's argument:
But, in reality, this is no major conservative win in any sense...First, Roberts's opinion, even if it constrained future Supreme Courts in perpetuity, is a narrow one that does not substantially alter existing commerce clause and spending powers jurisprudence. And second, what Roberts wrote in NFIB v. Sebelius will do nothing to constrain future courts.I should back up a bit, because I've been trying to make sense of all of this based on my own understanding of things going in. What I've been saying throughout is that it would be very difficult for the conservative Justices to put together a case that (1) struck down ACA; (2) did not constitute a major judicial overturn of the way that the US has been governed for the last 80 or so years; and (3) was internally consistent and passed the giggle test -- that is, wasn't just pure partisanship (as opposed to strong ideology). So my assumption was that it would be very hard to overturn ACA unless they were willing to either attack the New Deal arrangements or look like hacks. I suspected that they wouldn't want to look like hacks, and had no idea whether they did or didn't want to go the whole "Constitution in exile" route.
But that didn't really work out, did it? Because Roberts did embrace Broccoli Liberty (which I continue to think is just silly), but didn't do it in an effort to carve out a special "No major Obama legislation" exception. So, basically, I'm trying to fit what did happen into the framework I was using to understand what would happen, while of course leaving open the possibility that I was just wrong. But if not: what I think happened is that Roberts wound up using hack logic as window dressing, but that when it counted, he wound up with reasonable reasoning. If that's right -- and I'm not sure about it -- then I can return back to my framework, and say that Roberts just wasn't willing to disrupt how the US was governed just in order to knock out the ACA. But, yeah, I have no idea whether that's true or not, and I don't know what it says about the future. Does Roberts really not want to kill off the New Deal and Great Society? Did he just think that this case was the wrong time to do it, whether for political reasons or technical law-related reasons? I don't know. On the other side: is Kennedy really okay with such a disruptive dissent, or would he have pushed for more moderation (or even switched?) if the conservatives had four other solid votes?
All of which is fine; that whole line of thought may be asking for more consistency (not just legal consistency; political consistency) than what we actually get. And, as with other politicians, there's no way to know what's really in their heads. It's all speculation. But I'll defend some speculation here, because the stakes are indeed very high.
Meanwhile, for right now, I think Lemieux is correct and this decision at least is a liberal win. I just can't figure out what, if anything, it tells us about the future.