Does it matter that Chief Justice John Roberts might have changed his vote at the last minute? There are plenty of rumors floating around, and the wording of the ruling - as described by reliable writers such as Paul Campos - does seem to tell that story. I have read the ruling, and it does have an awkwardness to it that only makes sense if you consider that Judge Roberts did change his mind. The bit that stands out, to me, is the first section - it looks "tacked on", and is the main reason CNN and Fox reported as they did.
If Justice Roberts did change his mind, its worth thinking about why. Was it the vehement, almost violent, tone of the dissent? The uncharacteristic political punditry and lawyerly vileness that emanates from it? I can't help but think that did flip it for the man. And then he ran out time, so he had to vote with to uphold the law. It's probably that basic.
Here's what I think might have happened. We know that Justice Roberts assigned himself the opinion. That means he was in the majority; quite naturally, the opinion writer is assigned always from the majority. But I think that Justice Scalia and perhaps Justice Kennedy decided to write a different opinion - one that went much, much further than the Chief Justice wanted. To say it's a partizan hack job is to be kind; it reads like a political speech from a learned but disturbed and very angry Tea Party favorite. With Justice Ginsburg writing what turned out to be a robust and convincing dissent, Justice Roberts was left with little room to maneuver. He'd already figured that the taxation bit was a positive; all he had to do was get it in there. The result wasn't, as some have said, Marbury-esque; Chief Justice John Marshall's legacy remains untouched in that regard. What Chief Justice Roberts ended up with was a confusing and difficult compromise that will come back and bite both Congress and the Court for years to come. While Marbury is a brilliant piece of legalistic logic that helped bind the Union, Justice Roberts has managed something that could be best described as "obstinate". And perhaps a little "difficult".
Ultimately, what really matters is how Justice Roberts voted. That there seems to have been some dreadful (or fortunate, depending on where you stand on Obamacare) miscommunication and outright belligerence within the ranks of the Justices is something that he'll have to figure out in the forthcoming years. I think that rather than looking at if Chief Justice Roberts changed his vote at the last minute, we should instead worry that this Court seems to be woefully unprepared and incapable of dealing with important matters, and indeed seems to be incapable of separating their jobs as interpreters of The Constitution with their political beliefs. Even accepting that law is always moral or political (rarely both), this Court seems to confuse political ideology for judicial and human morality.
While the conservatives weep and screech over the "betrayal" of the Chief Justice, I'm still inclined to note that this is a Court that favors corporations and authority and right wing pedantry over The People. In other words, the Obamacare decision was an aberration brought about by the foolish stridency of the far right Justices. In the end we're still left with the idea that the Supreme Court is not the final authority because it's infallible, but that it's generally infallible because it's generally the final authority. At the end of the day, because the Republicans have nothing to replace it with, Obamacare is here to stay.