This was in The Atlantic by Daniel Epps.
I recommend reading the entire piece.
I may lay off of the Chief Justice after all. I admit that I am a bit on the hot headed side when it comes to the current occupant and the congress because of the massive stupid that they are so very capable of on a daily basis.
So here is the scoop from Daniel Epps with a link at the end.
There are eerie parallels between today's decision and a legendary case from Thomas Jefferson's time.
A John Marshall statue presides over D.C.'s Judiciary Square (AgnosticPreachersKid/Wikimedia Commons)
Earlier today, the Supreme Court, by a narrowly divided vote,
upheld the individual mandate, a key component of President Obama's
signature piece of legislation, the Patient Protection and Affordable
Care Act. Obama supporters are letting out a collective sigh of relief,
as most observers expected the mandate -- and possibly the entire Act --
to fall after the oral argument. Conservatives are conversely upset
that Chief Justice Roberts -- the deciding vote in the case -- snatched
defeat for conservatives from the jaws of victory, given that there were
four votes to strike down the Act in its entirety.
Although the decision is certainly a win for Obama and Democrats,
it's by no means a clear-cut victory. And while the Chief Justice is
taking a lot of heat from the right, the way he handled the case might
actually turn out to be a brilliant strategic move -- one that could
very well define his judicial career, and could actually be the optimal
outcome for Republicans.
To explain -- and I promise this historical detour will be worth it -- we should note unexpected parallels to
Marbury v. Madison,
the 1803 case in which the Supreme Court, in an opinion by Chief
Justice Marshall, established that it had the power of judicial review:
i.e. to declare federal laws unconstitutional. The very simplified
background is this: The petitioner, William Marbury, had been nominated
as a justice of the peace by President John Adams at the very end of
Adams's term, right before Thomas Jefferson took office. The Senate
confirmed the nomination.
Unfortunately for Marbury, he never got his hands on his commission.
Marbury's nominations had been part of a large slew of judicial
nominations pursuant to the Judiciary Act of 1801 -- a statute passed by
the Federalists after the 1800 election as a last minute attempt to
stack the bench with Federalist judges before Jefferson and his party
took office. Once Jefferson was sworn in, his secretary of state, James
Madison, refused to deliver the undelivered commissions and the new
Congress got to work repealing the Judiciary Act of 1801.
Marbury went to the Supreme Court, asking the Court to issue a writ
of mandamus -- an order telling Madison he had to deliver the commission
to Marbury. The Court was full of Federalists like Marshall, but
Jefferson thought he had the justices boxed in. They could either rule
that Marbury's rights hadn't been violated, vindicating Jefferson's
supposition that the appointments did not need to be honored. Or they
could issue a writ of mandamus ordering the secretary of state to
deliver Marbury's commission. But Jefferson would likely have simply
ignored it, in which case the Court's credibility would have been
permanently damaged.
Chief Justice Marshall did something no one expected: writing for the Court, he ruled that Marbury's rights
had
been violated, thereby refusing to give a judicial imprimatur to
Jefferson and Madison's actions. But his opinion did not issue a writ of
mandamus that the Administration could simply ignore. Instead, it
provided no remedy to Marbury, because of a technicality: The statute
under which he had sought mandamus relief authorized such petitions to
be filed directly in the Supreme Court. But Marshall concluded that that
statute was unconstitutional, because in the Court's reading it could
only authorize appellate jurisdiction over mandamus suits. In doing so,
the Court built its own power and prestige by establishing that it had a
power it was not necessarily assumed to have before: the authority the
strike down federal statutes that violated the Constitution. But in
doing so, the Court gave Jefferson absolutely nothing he could use
politically: the opinion clearly rebuked his actions, but it didn't give
him an order he could defy.
The parallels here are eerie. President Obama was ready for the Court
to uphold the mandate -- in which case he would have trumpeted the
decision as a vindication of the law and a rejection of Republican
criticism that Democrats had overreached. And he similarly, was ready
for the Court to strike down the mandate, or even the whole Act
(apparently, he had
three different speeches prepared
for all the possibilities). He'll never read those speeches, but he
almost certainly would have challenged the Court head-on and tried to
make its conservative bent into a wedge issue in his campaign -- he has
been quite willing to politicize the Court
in the past.
There
was no prospect that Obama would have ignored the ruling -- as
Jefferson might have ignored a mandamus writ -- but the ensuing
political struggle could have damaged the Court's credibility. And it
might very well have hurt Roberts's legacy in particular, given that
there had been a focused attempt in the press to paint a narrative about
him as the leader of a Court out to get Democrats and Obama.
So the president was ready for the Court to break right or break
left. But instead, Chief Justice Roberts juked. He agreed with the
challengers that the mandate couldn't be justified under the Commerce
Clause or even the Necessary and Proper Clause -- thereby reinforcing
the narrative that the Democratic Congress overreached in passing the
bill. His opinion -- though not the result -- may provide much help in
the future to judicial conservatives, as it suggests that, with the
dissent, five justices are in favor of a more aggressive role for the
Court in policing the bounds of the Commerce Clause (and the Spending
Clause, which was at issue in the Medicaid legislation). And while
Roberts ultimately voted to uphold the Act, he did so on a ground that,
for Obama, plays terribly: that it's a tax.
Now, much as Jefferson was two centuries ago, Obama is boxed in. What
is he to do? He can't criticize the Court for judicial activism, as it
upheld the law (putting aside the way the Court limited the Medicaid
provisions, which are not particularly salient to voters). The decision
undercuts a potential theme of his campaign -- that a conservative Court
is out of control. And yet Obama can't trumpet the decision either,
since it states that Democrats overreached in trying to justify the law
under the Commerce Clause. Worse yet, it calls the mandate something
that Democrats didn't want it to be: a tax.
Conversely, the decision may be the optimal result for Mitt Romney.
If the Court had struck down the mandate, it would have taken off the
table an issue that Republican base voters care tremendously about. But
in upholding the law, the Court didn't just leave that issue on the
table; it gave Romney tremendous ammunition he can use to criticize
Obama as a tax raiser.
There was much contrarian wisdom floating around prior to the
decision about how a defeat might be helpful to Obama, as he could run
against the Court. Jeffrey Toobin criticized this as "nonsense":
"Winners win, and losers lose."
We'll never know if Obama could have potentially won by losing the
health care case. But the coming months will tell whether he might have
lost by winning.
http://www.theatlantic.com/national/archive/2012/06/is-john-roberts-outfoxing-us-all/259121/
