Maybe this is what happens when conservative jurists try to gauge public sentiments and be popular constitutionalists? Liberals, who have been doing this for decades, are good at it. Conservatives, who for decades clung to formalism and originalism and other isms, lack that experience. So when the Chief tries to do what he did, it failed miserably. This is kinda like when Justice Stevens or Breyer tries to do originalism. They fail.

Maybe judges should just stick at what they are good at, and not switch approaches in the most important case of a generation.

My paper on popular constitutionalism and the challenge to the ACA will probably take this arc.