An interesting take on the Chief Justice of tht Supreme Court

A Marbury for our time
[Via SCOTUSblog]

The following contribution to our post-decision symposium on the health care cases is written by Bradley W. Joondeph, Professor of Law Santa Clara Univeristy. He is also the author of the ACA Litigation Blog.

In yesterday’s historic decision, Chief Justice Roberts’s opinion for the Court held that the minimum coverage provision falls within Congress’s power to impose a tax, and thus is constitutional. At the same time, he concluded that the mandate exceeded Congress’s power to regulate interstate commerce, and that the Act’s dramatic expansion of the Medicaid program is unconstitutional insofar as it jeopardizes the states’ preexisting Medicaid dollars. In short, the Chief Justice upheld the entirety of the ACA, but with some important caveats.

The end product was—not to put too fine a point on it—brilliant. It was a brilliant act of judicial statesmanship that parallels another landmark decision, Marbury v. Madison.


It will take quite some time before learning if this case is as important  as Marbury v. Madison (It’ll need a better name any way. National Federation of Independent Business v. Sebelius does not have catchy title.)

Especially since Marbury v Madison was a unanimous decision.

The Chief Justice wove a very interesting path that may eventually be seen as brilliant in its journey between different Constitutional views. But I am not so sure. Both the separate assent by Ginsburg and the dissent by the four other conservatives are much easier reads and much easier to understand.

Robert’s language and pacing in his decision is so convoluted – it is easy to understand how quick reading journalists at CNN and FOX got it so wrong – that it almost requires side notes to explain it. Meanwhile, Marbury v Madison suffers from none of these contortions.

In most of the great decisions of the Supreme Court, the side that history decides is the correct one usually has legal arguments that are very easy to understand. As I wrote almost 10 years ago, even though there was a single dissent in Plessy v. Ferguson, it turned out to be right.

I see this again  and again in important Court cases – the side that holds up is able to explain that decision in words that can be easily understood.  I do not see that in Robert’s assent. In my opinion, it is a splitting of the baby in a way that will not hold up for long, one way or another.

But we shall see.