Roberts - Marbury v. Madison
Thursday, June 28, 2012
Posted by: Hugh Hewitt at 7:20 PM
One way to think about this: The decision is a modern Marbury v. Madison, where the executive who thought he had won had actually lost. The Chief Justice, already on the fence because of the plausible argument about the taxing power and worried about the Court's reputation and legitimacy as well as the prospect of two or three more appointees from President Obama, decides to go for the historic win and, by putting the taxing power on steroids, upholds the law but also changes the campaign tone which will not only result in the election of Mitt Romney and security in the next round of Supreme Court nominations and confirmations, but also lays the foundation for a long range cabining of the Commerce Clause and an eventual strike down of other portions of Obamacare, including the HHS regs. If this scenario plays out, this will put Roberts in Marshall's rank, but that depends on the electorate and, if elected, Mitt Romney's appointees to SCOTUS.
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