At RealClearPolitics, Sean Trende examines the big picture when intrepreting Chief Justice Roberts' Obamacare opinion:
In 1803, the chief justice of the United States had a problem. His hated cousin, Thomas Jefferson, had won the last presidential election. But the outgoing Federalists opted not go gentle into that good night. The one branch of government they controlled was the judiciary, and they meant to keep it. They had passed the Judiciary Act of 1801, which allowed for several new judicial appointments.
President Adams did a remarkable job filling the appointments and getting them hastily confirmed. The so-called “Midnight Judges” by and large received their commissions. But not all of them did. Incoming President Jefferson then instructed his secretary of state not to deliver the remaining ones.
Unsurprisingly, litigation ensued. One of those who was to receive a commission, William Marbury, filed a petition directly in the Supreme Court under a provision of the Judiciary Act of 1789. He requested a writ ordering the secretary of state to deliver his commission.
But Chief Justice John Marshall was a staunch Federalist. The republic was young, the court’s legitimacy fragile, and the ability of the nation to endure the peaceful transfer of power between parties uncertain. It was also unclear how Marshall’s ordering the newly installed Jeffersonian Republican secretary of state to do something would go over.
So the chief justice did something very clever. He found that Marbury was entitled to his commission, bestowing legitimacy on those Midnight Judges who had received theirs. But he didn't stop there -- to Marbury's detriment. He then ruled that the Constitution only gave the court so-called “original jurisdiction” over a small number of cases. The provision of the Judiciary Act of 1789 bestowing the court with original jurisdiction over writs of the type Marbury sought was therefore unconstitutional.
Jefferson had won, nominally. Madison didn’t have to deliver the commission, Marbury didn’t refile in the lower courts, and he never became a justice of the peace. But history remembers the case as a huge, perhaps decisive, blow against those Jeffersonians who viewed the Constitution as nothing more than a glorified Articles of Confederation.
In depriving the court of original jurisdiction, Marshall had installed the Supreme Court as the ultimate arbiter of the constitutionality of laws. Jefferson hated the idea of what has become known as judicial review. But having won, he was powerless to act against Marshall. Over the course of his term, Marshall would use that power to increase vastly the powers of the federal government, and to diminish those of the states. . . .
. . . I think if you scratch the surface here, Roberts embarked upon a gambit much like Marshall did 200 years ago. For the results-oriented -- which is to say, most observers on both sides who have been ranting about the Constitution for the past few months -- this is a clear win for the Obama administration, at least in the short term.
The loss is especially galling for conservatives because they were extremely close to having the whole thing struck down in its entirety, immediately. That’s what Justices Scalia, Kennedy, Thomas and Alito would have done, and there’s some pretty good evidence that Scalia’s dissent was the majority opinion until fairly late in the day.
But Roberts is only a few years further into his chief justice-ship than Marshall was at the time of the Marbury decision. His tenure is likely to be equally as lengthy, if not more so. I think the forest for him is quite a bit different than the trees that people are focusing on. Consider:
1. The law still has a good chance of not being implemented.
Let’s start with Roberts’ presumed crass political considerations. Namely, as a conservative Republican, he would not want the health care law implemented. But if Mitt Romney wins the November election, it is highly likely that Republicans will win the Senate as well. Right now, Romney probably has no worse than a 50-50 chance of being elected. I honestly don’t think in the long run this changes things that much. The next jobs report will have a much greater impact on Obama’s re-election bid over the long haul than this decision.
If Republicans win the Senate and presidency, the law is doomed. They will use reconciliation to repeal it, or to gut it. In fact, since the court essentially allowed states to opt out of the Medicaid expansion, there’s a chance that the bill would no longer reduce the deficit if a large state like Texas opted out. This makes the use of reconciliation much easier.
2. Doctrinally, The Federalist Society got everything it wanted.
But judicial conservatives who are not just concerned about the outcome got more than they could have reasonably hoped for. Doctrinally speaking, this case will likely be remembered as a watershed decision for conservatives.
Five justices just signaled to lower courts that, but for the unique taxation power argument, they were prepared to rule that a major act of Congress that plainly touched upon economic activity exceeded Congress’ commerce powers. Right now, liberals are seemingly too busy celebrating their win, and conservatives bemoaning their loss, to realize the significance of this.
None of the liberals’ previous arguments about the upshot of such a ruling are rendered invalid simply because the chief justice decided that this was a tax (and almost everyone agreed that if Congress had just called it a tax, it would have been constitutional). The court just constricted its Commerce Clause jurisprudence; if liberal commentators are correct, they did so by a lot. It doesn’t matter today, but 10 years from now, it will probably be a different story.
The most important aspect of the ruling, however, comes with respect to the spending clause. Seven justices just agreed to real limits on Congress’ ability to attach strings to legislation. This is significant. Until today, these limits were hypothetical, and it was believed that Congress could, for example, remove all Medicaid funding as a punishment for a state’s refusal to comply with the Medicaid expansion. I did not expect the court to rule the way it did here, much less to do so by a 7-2 vote.