Atlantic: In Health Care Ruling, Roberts Steals a Move From John Marshall's Playbook

[div class="excerpt" style="border: 1px solid #bfbfbf; border-bottom: none; border-radius: 0.3846em 0.3846em 0em 0em; box-shadow: 2px 2px 6px #bfbfbf;"]In Health Care Ruling, Roberts Steals a Move From John Marshall's Playbook[div class="excerpt" style="border: 1px solid #bfbfbf; border-top: none; border-radius: 0em 0em 0.3846em 0.3846em; background-color: #f4f4f4; box-shadow: 2px 2px 6px #bfbfbf;"]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.

--snip--

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.

Very interesting article- worth reading the whole thing (which goes into Marbury v. Madison and sets up the comparison). Conservative justice makes conservative ruling, film at 11.

PB