Over at HughHewitt.com I have ventured the opinion that perhaps --just perhaps-- originalists will eventually recognize Chief Justice Robert's decision and opinion yesterday as a bit of judicial genius that will be his Marbury v. Madison --the case that at first glance seemed a win for an executive whom the then Chief Justice opposed but which was in reality a huge win for the Court and the original design of the Constitution.
We won't have even a preliminary assessment for at least four months, and even if Mitt Romney wins the presidency, the success of this immense gamble will depend on the actions of the Congress after a GOP sweep and the identities and philosophies of the next two to three Supreme Court justices.
When Chief Justice John Marshall gave Thomas Jefferson what looked like a big win in 1803 it took decades for the genius of Marshall to be recognized, and the cornerstone role he forged for the Court to emerge as key to the Republic's long-term health and the balancing force between its three branches.
How long will critics have to wait to see if their anger is justified? On yesterday's radio show I interviewed House Majority Leader Eric Cantor, Energy and Commerce Chair Fred Upton and Senate Judiciary Committee member John Cornyn and all bluntly stated that the solution for a legislative fiasco like Obamacare is a legislative fix. That fix will have to arrive in 2013 if the worst of the law's impacts are to be avoided. (Transcripts of those conversations are here.)
I also interviewed Tevi Troy, one of conservatism's sharpest critics of Obamacare and a senior official in the Bush Administration. I asked him how he thought the Chief's actions had played in Crawford, Texas, and what yesterday's decision did to the legacy of George W. Bush as Chief Justice Roberts is such a key part of that legacy.
Troy thought about it and emailed this morning.
"The right answer," he concluded, "is what Chou En Lai told Kissinger about the French Revolution: 'It's too early to tell.'"
A very good answer that, and especially applicable to a big court case full of complex reasoning and with its life just beginning as a precedent, especially in the area of the Commerce Clause.
I have to think that the Chief Justice weighed the strength of the taxing power argument, other factors were added to the scale. He looks to his left and sees perhaps soon-to-retire Justice Ginsburg and Justice Breyer. He looks to his right and sees two more justices who could well retire in the near term, Justices Scalia and Kennedy. There is an argument for enjoying grandchildren after all. Enormous change is coming to the Supreme Court and soon. While Obamacare could have been swept away yesterday, the reasoning behind it might not survive even a year without reinforcements, and even deadlier claims on power are being made by the government, claims the Court will have to turn back or the nature of the Republic will change.
Also on that scale had to have been the impact of a sweeping ruling of the sort the dissent envisioned, and its impact on the Court and on the election. A 5-4 decision killing a vast legislative undertaking passed with supermajorities --however transient-- and supported by the Manhattan-Bletway media elite would have so thoroughly politicized the Court that filibusters of every GOP justice in the next decade could have been imagined as payback. Nw the perennial obstructions like Patrick Leahy who want no GOP appointees to advance to the Supreme Court will find their warnings of doctrinaire conservative wreckers mocked at every turn. Roberts may well have saved many nominees from endless Congressional limbo and 41-vote vetoes.
And the impact on the election? This last factor would have been the least of all considerations if it entered into the Chief Justice's thinking at all, but analysts can walk away and say for certain that Team Romney is energized by tens of thousands of new donors and volunteers and the campaign's narrative fixed for the next four months by this decision and the cancer that is Obamacare. (See Chapter One of The Brief Against Obama.)
Meanwhile across the country briefs challenging various manifestations of the regulatory uber-state --from the Endangered Species Act to the Clean Air and Clean Water Act and many more federal statutes-- are being pulled and rewritten to incorporate the Chief Justice's analysis of the Commerce Clause, and it won't be long until more opportunities are before the Court to reassemble the five votes in a different context and pare back Congressional interference with private lives and state authorities. Circuit court and district court judges should begin today to apply the Chief's crystal clear admonitions on the limits of the Commerce Clause, limits backed in their entirety by the reasoning of the dissenters' joint opinion.
More challenges to Obamacare are on the way as well, and backers of the president's attack on the Catholic Church will find no reason to rest easy in the Chief's opinion and quite a lot to lose sleep over.
The first act in this play was the Obama-Pelosi-Reid jam-down. The second, the elections of 2010. Yesterday was Act Three and it set the stage for the fourth and then the final acts that are coming in November and early 2013.
If you are one of the conservatives who left the theater yesterday, you are an unhappy, disappointed and perhaps even dispirited citizen.
A citizen to whom it has to be said again and again: Not so fast. What if Romney wins, Obamacare is repealed, two or three or four new SCOTUS justices arrive and the Chief Justice --immune forever from charges of partisanship-- leads a revitalized originalist block on a refashioning of key areas of long tortured jurisprudence?
It could go completely the other way, of course, and then yesterday's anger will harden. But for a season or two at least, wait on the end of the drama. The Bush domestic legacy remains anchored in the tenures of Chief Justice Roberts and Justice Alito, and the jury is very much out.