Here’s the problem with Slate’s theory, as well as everone else who thinks along similar lines: it’s predicated on the belief that a cobbled together five-justice majority to reign in the expansive use of the Commerce Clause under the precedent set in this decision is going to be a certainty going forward.
How old are Scalia and Kennedy again? How much longer can they be expected to serve? I figure both want to hang on and retire under a Republican President (I think Kennedy has even said that he plans to do so), but plans cease to matter in the event of a stroke or heart attack or cancer.
Considering that the Liberal Wing of the Court could care less about stare decisis, anything positive in Roberts opinion will be rendered moot if Obama gets a chance to replace Scalia or Kennedy.