The chief justice's Marshall plan

The Supreme Court's decision on the Affordable Care Act surprised even the most experienced and learned court watchers. It was not so much the decision itself as it was the grounds and the one who cast the deciding vote: the judicially very conservative Chief Justice John Roberts.

What was he thinking when he voted to uphold a statute he surely believes is an unconstitutional overreach? How could he believe that the penalties Obamacare imposes on people who decline to buy health insurance are a tax, especially when those who passed the law claimed publically and often that it was not a tax? His vote and the reasoning of his decision are so puzzling that one suspects him of attempting the sort of victory disguised as concession that Chief Justice John Marshall accomplished in the 1803 decision, Marbury v. Madison.

It went like this: In the 1800 presidential election, Thomas Jefferson defeated President John Adams, a Federalist. In an effort to stack the judiciary with Federalists, Adams appointed as many judges as possible before Jefferson was sworn in, and William Marbury was one of them. But Marbury's commission had not yet been delivered when the new administration took over. Jefferson was furious over these "midnight appointments" and refused to deliver the commission. Marbury, following the Judiciary Act of 1789, went directly to the Supreme Court for a writ of mandamus, a document commanding an official to carry out his duty.

Chief Justice Marshall faced a conundrum. Order the commission delivered, and James Madison, Jefferson's secretary of state, would simply refuse. This would establish the judiciary as irrelevant. (Remember, the republic was still young and taking shape.) Allowing Madison to withhold the commission would also weaken the judiciary. Marshall somehow had to assert judicial authority and at the same time insulate himself against a counterattack.

His solution was brilliant. He asked: Does the applicant have the right to his commission? Yes. It needed only be signed and sealed. But does the Supreme Court have the power to command its delivery? No. Marbury's mistake was in following the Judiciary Act of 1789, which sent him directly to the Supreme Court for the writ instead of through the lower courts as the Constitution required. So Marshall struck down the law, and in so doing affirmed the court's right of judicial review, which Jefferson strongly opposed. Jefferson could not object because he won the case. Checkmate!

Charles Krauthammer argues that Roberts found himself in a similar conundrum. From a constitutional standpoint, the law horrified him, but he was concerned for the public esteem of the court, viz., that it not be viewed as politically partisan. So he joined the liberals in upholding the law, but went out of his way to limit the government's use of the Commerce Clause, which in the 20th century had been a deep well of expanding federal power.

But Marshall secured something substantive and historic: the right of judicial review. Roberts, in this scenario, manages further to restrict the government's use of the Commerce Clause, adding to the setback liberals suffered in U.S. v. Lopez, the 1995 handgun case. But he does this at the expense of opening up what The Wall Street Journal calls "a vast new taxing power."

The Washington Post's Ezra Klein calls Roberts a "political genius" for the way he secured his constitutional goals while making himself "bulletproof against insinuations that he's animated by party allegiances."

But aside from the futility of trying to placate the angry left with anything short of resolute conversion to liberal progressivism, it is simply not the chief justice's job to worry about these public perceptions, and certainly not to address them by making nonsense of the text of the Constitution.

In his decision, Roberts wrote, "It is not our job to protect the people from the consequences of their political choices." But it is the judiciary's job to protect the people from the constitutional consequences of their political choices, i.e., to say faithfully what the constitution says, and to declare any law that violates it null and void. In this basic task, John Roberts was no John Marshall.