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The Chief Justice's Gambit

By Sean Trende - June 28, 2012

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To put it differently, if this ruling had a different result -- if Roberts hadn’t decided that this was a tax -- this decision would be regarded as a debacle for a liberal interpretation of the Constitution. It is no less so simply because the Affordable Care Act was upheld on alternative grounds.

3. The chief justice has built up some political capital.

Barack Obama was forced to go on television and praise the court’s ruling. In so doing, he validated -- at least implicitly -- one of the most pro-state’s rights decisions in recent times.

Roberts has basically done what John Marshall did: Insulate the court from criticism of bald partisan bias and infidelity to, as he once put it, calling balls and strikes. He’s earning plaudits from the left. Though the right is grumbling, I suspect they won’t be doing so for long.

4. This matters in the long run -- a lot.

This is not the last battle to be fought on the Roberts Court. It might not even be the most significant. In the next term, for example, the court is being asked to reconsider its affirmative action jurisprudence. There are almost certainly five votes to overturn court rulings from a decade ago upholding some forms of affirmative action.

Following that, the court will face a variety of tough decisions. There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act.

I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series of decisions really might have irrevocably hurt the court’s reputation for independence.

But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues.

All told, it is easier for the conservative wing of the court to make some significant rulings in some other policy areas. In so doing, he actually made significant progress for judicial conservatives while ruling against conservative policy. And he might still see that policy repealed if Republicans win in the fall. 

UPDATE: One additional comparison has sprung into my mind.  One of the interesting features of Marbury is that the court didn't have to decide that Marbury was entitled to his commission.  Indeed, it probably should have decided the jurisdictional issue first, then left the remaining issues for the courts to decide upon refiling.  But Marshall wanted to get the most favorable outcome for Federalists that he could, while still maintaining the court's credibility.

Similarly, Roberts actually didn't have to address the Commerce Clause/Necessary and Proper Clause issues.  Having decided the tax issue, he actually probably could have stopped there.  That he didn't suggests that he wanted to make sure that, even in defeat, there were five clear votes for the conservatives' view of the Commerce Clause and Necessary and Proper Clause.

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Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at strende@realclearpolitics.com. Follow him on Twitter @SeanTrende.

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