As you digest Chief Justice Roberts’ opinion, it is worth re‐reading the opening part of my DePaul colleague David Franklin’s Slate piece from a while back. In it, he notes the current Chief Justice’s admiration for Chief Justice John Marshall, and then speculates that Roberts’ “Obamacare” opinion may try to ape Marshall’s strategy in Marbury v. Madison. David writes:
Everyone knows Marbury v. Madison as the case in which the court first asserted the power to declare acts of Congress and the president unconstitutional. What’s less well known is that the defendants in Marbury (Secretary of State James Madison and, by extension, President Thomas Jefferson) got off on a technicality.… Marbury promised sizzle and ended with fizzle.
But all of this was by design. John Marshall, the brilliant but unassuming chief justice, always intended to use Marbury to hand his cousin and arch‐foe Jefferson a narrow legal victory while dealing him a long‐lasting political blow. By lecturing Jefferson about his legal duties, Marshall put the president in his place. (Ours is ‘a government of laws, and not of men.’) And by laying the foundation for judicial review, Marshall carved out a prominent new place for the court. Most important, Marshall did all of this without ordering Madison or Jefferson to actually do anything. No wonder historian Robert McCloskey called Marbury ‘a masterwork of indirection.’ ”
Was Roberts trying to ape his hero Marshall’s “masterwork of indirection” when he crafted his opinion? The idea isn’t totally implausible, especially if you credit libertarian lawprof Jon Adler’s and Slate pundit Tom Scocca’s takes on the decision. Both note that while the decision hands President Obama a legal victory, the opinion may contain a considerable silver lining for advocates of limited government over the longer term. Whether or not you think this is true, it at least opens a plausible window on the mind of Chief Justice Roberts.
Update: David Franklin has posted a sequel to the article quoted above in a new Slate piece that expands on the connection between Roberts’ “Obamacare” opinion and Roberts’ Marshall‐philia. David may be too sanguine about the long term potential for Roberts’ opinion to help libertarians. David has also altered me to a piece by Daniel Epps at the Atlantic, which also explores the link between Roberts’ thinking and Marbury. Epps takes the long‐term potential of Roberts’ decision to help advocates of limited government more seriously than David does. For those looking for insights into Roberts’ motivations, both are well worth reading.