There are several fascinating and provocative pieces today—among them one by Sean Trende, one by Jay Cost, and one by COMMENTARY contributor Adam J. White—that argue John Roberts’s peculiar opinion in the Obamacare case yesterday is a Machiavellian masterstroke. It is, they say, comparable to the ju-jitsu practiced by the first chief justice, John Marshall, in ruling for Thomas Jefferson’s administration even as he single-handedly raised the Supreme Court to a co-equal check-and-balance on the executive branch, something Jefferson detested, in the 1803 Marbury v. Madison decision.
Roberts himself probably had Marshall and Marbury in mind as he crafted an opinion that seeks to limit federal power even as it allows its expansion in this single case. Which does not change the fact that Roberts’s reasoning is intellectually, ideologically, and legally perverse—willfully so, in fact. And no matter how you slice it, such perversity is not good argument, good intellection, or good leadership by the nation’s most powerful thinker.
