The Obamacare decision crafted by Chief Justice Roberts…may be the best of all possible outcomes, including striking the whole thing down as unconstitutional. I’ve been mulling the decision over since it was announced yesterday, and have had the persistent feeling that…something is going on here that is not clear. It’s been a nagging suspicion I’ve had since the decision was announced. Skip blogged yesterday about it, saying, that “I’m no lawyer, but….” Even so, Skip came very close to seeing entirely through the noise and chaff, and discerning what actually may be going on. At one point he said “has Roberts actually laid in a hidden ambush (albeit, long term) by creating a virtual dead-end canyon into which Lib Big Govt-ers are going to get led into?”
I believe the answer to that question is…
…yes. Hell yes, in fact. The decision by Chief Justice Roberts is simultaneously a judicial masterstroke, a Constitutional masterstroke, and a political masterstroke. The decision is akin to Marbury v. Madison, where the principle of judicial review was enshrined even while the Supreme Court in that decision conceded the immediate ground to the opposition.
In order to gain a full understanding of what has just happened—and it appears to be a tectonic plate shift in Constitutional law and theory that upends a discourse settled since the time of Franklin D. Roosevelt—I suggest you read the articles on three web pages, as follow:
1. First, read the rumination by history Professor Paul Rahe at his richochet.com blog. It refers to the actions of Justice Roberts in the Obamacare decision, and is entitled An Act of Great Cunning.
2. Second, read the article entitled Five Possible Silver Linings in the Obamacare Decision, by Timothy Dalrymple.
3. Third and finally, go to THIS PAGE at Instapundit and see what the law professors—including Georgetown Law prof Lawrence Solum, University of Wisconsin law prof Ann Althouse, University of Tennessee law prof Glenn Reynolds, and others—have to say about it. Once you’ve read the few articles listed there, you’ll have a pretty good overview of how the legal and constitutional ground has shifted and will continue to shift. You may also come to the conclusion—as I have—that Chief Justice Roberts, like Chief Justice John Marshall before him, may be emerging as a political genius as well as a legal and Constitutional scholar of the first order.