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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Friday, June 29, 2012 ::
    "It's not Marbury. It's a very naughty boy."

    This must be the week the "Free Hallucinogens for Conservatives" part of the Affordable Care Act kicks in. So many of them have reported sightings of flying lizards, green elephants, diamond skies, silver linings in the Obamacare decision, and resemblances of it to Marbury v. Madison. Dudes, it's a bad comedown, and flashbacks do happen.

    First, Marbury was a unanimous opinion, whereas Obamacare was partly 5-4, partly plurality only, and in its final form resulted (pretty obviously) from a change of mind by Chief Justice Roberts, possibly very late in the process. Whatever John Marshall was doing, he knew what he was doing.

    Next. The basic "it's-Marbury" spiel is based on a now-standard, but also seriously incomplete, view of Marbury itself. According to this view, Marbury is less a judicial decision than a coup d'etat: with the judiciary being the only branch still in Federalist hands following the Jeffersonian sweep of the 1800 elections, Marshall (so the narrative goes) cleverly maximized its power, by "inventing" (less doped-up versions content themselves with "establishing") the power of judicial review, but doing so in a way that left President Jefferson with nothing to complain about. Jefferson could hardly- could he? - complain about a decision in which the Supreme Court held that it lacked the power to force him to hand over William Marbury's judicial commission. Even though the Court could only find this lack of power by holding unconstitutional an act of Congress that purported to give it that power.

    Similarly, Chief Justice Roberts, yesterday morning, held (for a majority of the Court, since the conservative "dissent" agreed with him on this point - in fact, it wrote an entirely separate analysis on it: mighty odd thing for a dissent to do on an issue on which it doesn't disagree with the opinion it's dissenting from - but enough of that for now) that the individual mandate is beyond Congress's Commerce Clause powers, that Wickard v. Filburn is barely tolerable as an outlying precedent, and that the Court is certainly not going to extend it from marginal private economic activity (Wickard) to outright non-activity (this case).

    But by going on to hold that the very same individual mandate is constitutional as a tax, so the argument goes, the Court left Obama unable to complain, just as Marshall left Jefferson unable to complain.

    This is a valid parallel only if you see, in both cases, something the Court gained. In Marbury, the Court is said to have "gained" the power of judicial review. This is nonsense. Judicial review was a very familiar concept in Anglo-American jurisprudence, and in the U.S. Supreme Court particularly, even before Marbury. Its contours were highly restricted in England, with its emerging rule of parliamentary supremacy, but it was known. As for the U.S. Supreme Court, it had several times before Marbury considered constitutional challenges to acts of Congress, which is a very silly thing for a court to do if it has no power to issue the only conceivable remedy. The fact that Marbury was the first time the Court had ruled against the constitutionality of an act of Congress is a long way from the claim that the case "invented" the power to do so.

    And what did the Court supposedly gain in the Obamacare decision? Every claim being made on that score is a claim based on the supposed benefits of giving in to intimidation. The narrative runs: the Court now knows how naughty it was to protect speech that liberals don't like in Citizens United, and it therefore knows it would have been grounded for a week if it had struck down government health care that liberals also like, so it just had to be good. Or rather, if the Scalia-Kennedy-Thomas-Alito boys wouldn't be good, Roberts had to be good and do what the grown-ups say or, you see, they'd all be punished. With what, I'm not sure, but liberal columnists like Jonathan Chait seem to understand these things.

    In short, the Court got zilch, or worse - it got, as a fact on the ground, the principle that a campaign of threats against its "legitimacy" (whatever that means) in the elite press can actually change outcomes. I really didn't think it could. I was wrong. But to claim - especially for conservatives to claim - that the Court is the winner for being given thirty rather than forty lashes by Slate and MSNBC and New York Magazine is to signal that the "Constitution in exile," far from being on the verge of a return, may as well buy property in Fiji.

    Another Marbury-Obamacare parallel asserted (this time by critics of both of the Chief Justices we are discussing) is that much of the discussion in their opinions was unnecessary dicta, and therefore, could only have been politically motivated. But as to both of them, the charge is unjust. In Marbury, Marshall's long exposition of how Jefferson had wronged Marbury may indeed have served to embarrass Jefferson, and was no doubt welcome on that score - but it also served to explain to the world why the decision's ultimate confrontation with the constitutionality with Sec. 13 of the Judiciary Act (the part that purported to give the Supreme Court the power to issue writs of mandamus in original jurisdiction cases) was necessary. The explanation of how the Court got to that point could have been shorter, but it could not (fairly) have been omitted. (see Robert Lowry Clinton, Marbury v. Madison and Judicial Review.)

    Similarly, Chief Justice Roberts faced in the Obamarcare decision a case where the administration had placed all its eggs in the boat of the Commerce Clause (this is what gives rise to the critique that the Chief "re-wrote" the statute by affirming it on the basis of the Taxing Power). In order to bypass the constitutional clause that was the government's chief reliance, he had to explain why. The Ginsburg dissent (as the Chief explains) is simply wrong to assert that, in light of his eventual decision to affirm the statute on the basis of the Taxing Power, he could or should have bypassed any discussion of the Commerce Power. He had to explain why he was rejecting the more obvious basis for the statute, just as Marshall had to explain why he could not avoid facing the issue of whether or not the Constitution allowed Congress to give the Supreme Court the power to issue mandamus in original jurisdiction cases.

    So yes, I've just explained a way in which the two cases are similar. But these are not the similarities that are being cited and held up for conservative applause. The latter have to do with clever political maneuvering. But Justices are not supposed to do political maneuvering, clever or otherwise. And, as political maneuvering goes, Roberts's Obamacare maneuver (if such it was: I'm not signing on to that view) was not clever, at least not for the Court. (It may yet prove clever for Romney, but that's really not what Justices are supposed to be concerned about. And in any case, the most intense Marbury cynics have never argued that Marshall was trying to get some Federalist politician elected President.)

    :: David M. Wagner 4:07 PM [+] ::

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