Commerce clause majority?

Ethan asks whether there is a binding holding on the Commerce Clause, combining  the Chief with the four dissenters. A lot depends on whether the Chief's discussion is necessary and I am not sure I buy his explanation; he seems to be suggesting that they construed the statute to have it be a tax and then upheld it, but doing this first required consideration of the unconstrued text under the Commerce Clause. Mark Graber argued on a listserv that this is similar to Taney's move in Dred Scot, where he first held that there was no jurisdiction because Scot was not a citizen of the United States, then tried to fold the discussion of the Missouri Compromise into that jurisdictional discussion.

Going forward, this is calling to mind some debates over Congress' power to regulate private conduct under § 5 of the Fourteenth Amendment. In United States Guest in 1966, five justices held that a federal prosecution of private individuals for conspiracy to deprive persons of use of public accommodations could go forward, because there were sufficient allegations of public involvement in the conspiracy. Three justices from that majority--Clark, Black, and Fortas-- wrote a concurrence stating "There now can be no doubt that the specific language of § 5 empowers the Congress to enact laws punishing all conspiracies--with or without state action--that interfere with Fourteenth Amendment rights." Justice Brennan, joined by Chief Justice Warren and Justice Douglas, wrote a concurring opinion stating that the prosecution was valid because Congress has the power to reach all conspiracies that interfere with constitutional rights, with or without state action.

So advocates tried to use Guest to argue that there were six justices for a binding rule that Congress can regulate private action through § 5. But the Court rejected this in United States v. Morrison (the Violence Against Women Act case), stating that "three reasoned justices combining with three unreasoned justices  is "simply not the way reasoned constitutional adjudication proceeds." Now, I imagine (I have to read the decision) that Roberts did engage in serious analysis on the Commerce issue, so this is not exactly like Guest. Still, the Court typically does not count noses outside of opinions to establish majorities.

In any event, as Tom Goldstein points out, the Chief relied on the activity/inactivity distinction, which likely will not affect many statutes going forward.