Archive for June, 2012

The Marbury Man

Thursday, June 28th, 2012

Today, Chief Justice Roberts imposed a constitutional limit on that bastion of federal power, the Commerce Clause (he put a fence around it, as it were), and liberals cheer. That’s a neat trick on par with Marbury v. Madison. Maybe Roberts is tougher and more clever than right-wingers upset about the ACA ruling are now giving him credit for.


The Supreme Court limits the Commerce Clause, and the left wing cheers?

Maybe the Chief Justice is thinking more strategically than it appears.


In Marbury, Justice Marshall gave Pres. Jefferson something he wanted, but got something far greater.

Perhaps right-wingers angry at Roberts will figure that out later.


I personally join the judges who thought the mandate constitutional on Commerce Clause grounds too,

But thanks to Roberts’ clever trick, few have focused on his move, that clause to more narrowly construe.


I’m not saying that’s the only or even main reason Roberts did it;

If this then becomes a right-wing win, Roberts sure carefully hid it.


And though Tea Party zealots may not approve,

What Roberts did on the Commerce Clause was a supremely brilliant move.


So congrats, Mr. Chief Justice, though your motives are a mystery,

Today, in more ways than one, you go down in history.


Update: Here are Prof. Jeffrey Rosen 6/28/12 on Rev. Al (he also makes the Marbury v. Madison comparison) and Ed on the GOP reaction to Roberts’ decision. One minor disagreement, Ed: for Republicans, the five stages of grief are anger, anger, anger, anger, and anger. For more about Roberts’ Marbury connection, read Did Chief Justice Roberts Take a Cue From Two Centuries Ago? (Daily Beast 6/28/12 17:11), A Marbury for our time (Bradley Joondeph, aca litigation blog 6/28/12), and Stance stuns many but in line with his outlook (Dan Eggen, Washington Post 6/29/12 A1). Side note: Marbury was decided on Feb. 24, 1803, so in one sense it would have been cool if the Court had waited until then and issued its opinion on Marbury’s 210th anniversary. On the other hand, it’s good to get it over with…


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