There is not one thing surprising about C.J. Roberts' vote in King v. Burwell. Nothing. [View all]

[hifiguy]

Roberts' jurisprudence turns upon one idea - Big Money always wins when its interests are implicated.

The ACA has allowed Big Pharma and Big Insurance to rob the people blind and make obscene windfall profits and will continue to do so. Ergo, Roberts votes to uphold it.

Citizens United allowed Big Money unlimited ways to propagandize. Ergo, Big Money wins.

But marriage equality is a different thing entirely. First, Chiefs think about their legacies and do not want to be vilified by history. No Chief, with the possible exception of the Grand Rehnquisitor, wants to be mentioned by posterity in the same breath as Roger "Dred Scott" Taney. Marriage equality is historically inevitable, so Roberts can go with the historical flow on this issue and cover his butt.

Second, during argument, Roberts asked counsel for the parties seeking equality if the case could be resolved under settled sex-discrimination law and was truthfully told, "Yes, your honor." This was a VERY revealing question. If Roberts feels that this case can be disposed of narrowly applying settled precedents in the area of sex discrimination, as it very plausibly could be, he will be far more likely to go along with equality. And the woman who made most of that settled sex-discrim law offices just down the hall from him; her name is Ginsburg, IIRC. Doubtless these two have had a few friendly chats on the issue.

Thirdly, there is no Big Money interest in the equality case. To the extent Big Money cares about marriage equality at all, they tend to think it's good business and not a dime will be lost if it is upheld.

So for these reasons plan on seeing Roberts in a 6-3 majority with Fat Tony, Soapy Sam and Uncle Ruckus going off like supernovae of stupidity.

That is this lawyer's take.