And yet Ginsburg wrote what would have been the dissent — and a strong one — if Roberts had voted with the four conservatives to throw out the entire health-care law. Instead, her opinion concurred with Roberts when he said that the individual mandate was within Congress’s power to tax — this was the Constitutional loophole he found — but rejected his view that it wasn’t valid under the Commerce Clause, which gives Congress the power to regulate commerce. Ginsburg wasn’t gentle. She wrote that Roberts’s analysis was “rigid,” “crabbed,” and “stunningly retrogressive,” that it “finds no home in the text of the Constitution or our decisions” and made “scant sense.” There was also a mesmerizing dissection of the broccoli question. (Adam Gopnik has more on that, and Alex Ross has her favorite records.) Roberts’s view of the Commerce Clause, she wrote,

harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it…. It is a reading that should not have staying power.

“Staying power” is something that Ginsburg has. As Jeffrey Toobin says in this week’s Political Scene podcast, “Ruth Bader Ginsburg is seventy-nine. She is about five feet tall, eighty pounds, she has had every disease known to humanity. She is as tough as nails.” She made her way at a time when you could have a legal education from Harvard and Columbia and still be turned down for a job because you were a woman. She is not as loud or colorfully charismatic as Scalia — who is? — but neither does she seem to have learned to give up. (Those wondering about the liberal future of the Court might note that, on a point related to Medicaid expansion, Ginsburg was joined by only one Justice: Sonia Sotomayor.) We don’t know what happened inside the Court, or why Roberts voted the way he did. But by writing a scathing opinion, Ginsburg may at least have done him the favor of showing him what he might have looked like if he had signed on with Scalia: a political opportunist, and almost a fool.

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