He was seeing four current justices (Ginsberg, Breyer, Kagan, and Sotomayor) who are willing to say the Commerce Clause gives Congress the power to force people to engage in activities so long as Congress can regulate those activities by passing laws.
Roberts sees Scalia aging and, here comes the conspiracy theory..., may know of some health issue with him or another conservative Justice. What would happen if Obama is re-elected and gets to appoint another "liberal" Justice? Suddenly, the Court might rule that Congress has the power to force citizens to engage in activities (the 'eat the vegetable" example). What is Roberts to do?
The 4th Circuit already held the ACA's "penalty" was a "tax" and said the 4th Circuit could not hear the case due to the Anti-Injunction Act (http://en.wikipedia.org/wiki/Tax_Anti-Injunction_Act).
As part of the Internal Revenue Code, the AIA provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." I.R.C. Section 7421(a). The Declaratory Judgement Act authorizes a federal court to issue a declaratory judgment "except with respect to Federal taxes." 28 U.S.C. Section 2201(a). In Bob Jones Univ. v. Simon, 416 U.S. 725, 732 n.7 (1974), the Court held that "the federal tax exception to the Declaratory Judgment Act is at least as broad as the Anti-Injunction Act." Accordingly, our holding as to the Anti-Injunction Act applies equally to plaintiff' request for declaratory relief. The parties concede, as they must, that when applicable, the AIA divests federal courts of subject-matter jurisdiction. The Supreme Court has explicitly so held. See Enochs v. WIlliams Packing & Navigation Co., 370 U.S. 1, 5 (1952). By its terms, the AIA bars suits seeking to restrain the assessment or collection of a tax. Thus, the AIA forbids only pre-enforcement actions brought before the Secretary of the Treasury or his delegee, the Internal Revenue Service (IRS), has assessed or collected an exaction. A taxpayer can always pay an assessment, seek a refund directly from the IRS, and then bring a refund action in federal court. See United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 4-5 (2008).
This decision means the 4th Circuit does not even get to the merits of the law or whether to decide the law's constitutionality. Rather, they say Virginia has no standing to sue until someone actually has to pay the tax and who then applies for a refund from the IRS (basically).
So, Roberts can call it a tax since the taxing authority is broad... The Federal Government has used similar tactics against states for years (for instance, "reduce speed limit to 55, and we will give you road money").
If he can and does call it a tax, why, oh why, does he decide to rule on it?
1. Justice Roberts fears a conservative Justice dying or retiring (what does he know?). If Obama is re-elected and places another "liberal" Justice on the Court, the Commerce Clause may be decided as allowing an individual mandate-basically forcing citizens to do some activity just because the activity may be regulated by Congressional Action and/or the Commerce Clause (the reasoning depends on the Justices).
2. Justice Roberts fears ruling the ACA is a tax will put it off at least 2 years due to the AIA-sometime in 2014 (when the tax is applied). What might Justice Roberts know about the conservative Justices that we don't know?
3. By ruling the ACA is valid under the taxing authority, Roberts gets the liberal Justices to jump on board and agree to his limiting of the power of the Commerce Clause (!) even while supporting Congress's ability to tax (an important Federal power).
4. Roberts will be on the Court for a long time, and his ruling in support of the ACA ends some "outrage" over the "bipartisan" public-view some have of the Court.
5. In the long term, people may realize his quick switch severely limits Congress passing legislation based on the Commerce Clause-protecting his position on such legislation as the CWA as described in Rapanos.
6. His ruling may give him an ability to negotiate a more "balanced" Court in the future. Remember, this is his Court, and he doesn't want his legacy or the Court's legacy to be tarnished by partisanship or politics.
So.... Does that make any sense to anyone? Yeah, ... thin. Very thin...
Either way, have a great 4th of July and take a small break to read the Constitution-it really is short!
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