Talking Points Memo recently reported on how Supreme Court Chief Justice Roberts may have indicated possible agreement with president on the fate of health care reform in a recent case argued before the High Court. Roberts’ opinion in Florence v. Board of Chosen Freeholders of County of Burlington included an aside where he stated that the Court will not render opinions to “embarrass the future.”:

Constitutional scholars have overwhelmingly predicted, for two years, that the “Obamacare” individual mandate will be upheld, because it’s consistent with longstanding precedent and judicial deference to Congress on economic laws. Although public disapproval of the mandate could give cover to Roberts’ legacy if he decides to strike it down, Supreme Court historians say that would ultimately paint the five Republican-appointed justices as partisan actors as opposed to neutral arbiters of the law.

The majority decision in Florence, written by Justice Anthony Kennedy, held that the plaintiff’s 4th Amendment rights were not being violated. But the idea of rubber-stamping blanket strip-searches troubled Roberts — as well as Justice Samuel Alito — enough that he went out of his way to assert that the court reserves the right to carve out exceptions to this rule. It’s a logic that defines the central struggle of the health care case.

The Obama administration argues that the health care market is unique in critical ways that make this mandate necessary and proper — unlike requiring people to buy broccoli or gym memberships — on the grounds that those who fail to purchase insurance impose direct costs on the system. Roberts’ logic in his Florence opinion could hint at one way of upholding “Obamacare” while affirming that the court may later limit what the government can mandate.

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