Cats and Midnight Judges

“What’s that smell in this room? Didn’t you notice it, Brick? Didn’t you notice a powerful and obnoxious odor of mendacity in this room?… There ain’t nothin’ more powerful than the odor of mendacity… You can smell it. It smells like death.”

— Tennessee Williams, Cat on a Hot Tin Roof


Anyone who plays chess know that a gambit is the giving up a piece to get a superior board position and thereby an future advantage. It has its counterpart in baseball with the sacrifice fly or bunt. Occasionally, similar ploys are used in deciding hard cases.

The Election of 1800 was a revolution in American politics. The incumbent President John Adams and his party had been defeated by the Jeffersonians who captured two of the three branches of the federal government. Adams’s Federalists, however, managed to hold on to the judiciary, and even strengthened that hold by the Judiciary Act of 1801, which created many new courts for the outgoing President to appoint like minded judges to lifetime positions. Because Adams reportedly signed some commissions late in the evening of his last day in office, these were called the “midnight judges.” One was William Marbury.

When Thomas Jefferson took office shortly thereafter, Marbury’s commission had not been delivered to him, a pre-requisite for his exercise of judicial powers. The new President instructed his Secretary of State James Madison, not to deliver the commissions to any of the late Adams appointees, though the Secretary probably had a ministerial duty to do so. Marbury sued in the Supreme Court for a order to Madison to deliver the commission.

One of Adams’ appointees, who early on had been delivered his commission was Chief Justice of the Supreme Court John Marshall. At the time, the Court had so little prestige that Marshall was the fourth Chief Justice since the Court was established a mere dozen years prior, his three predecessors having gone on to bigger and better things. Marshall, however, was to serve for thirty-five years – the longest tenure of any Chief to date – and during that time he made the Court truly powerful and prestigious. The first, and probably the most significant of Marshall’s opinion for the Court was Marbury vs. Madison.

At the time, it was problematic whether Jefferson would have obeyed a Court order to deliver Marbury his commission. An argument could have been made that the separation of powers provided for in the Constitution precluded a Court ordering a President to perform a duty, or at least from enforcing such an order. Marshall was faced with either making an order that might be disregarded with impunity, or letting the executive get away with flouting what appeared to be a clear duty. Either way, the court’s future prestige was at stake.

Marbury sued Madison in the Supreme Court rather than a lower court because the Judiciary Act of 1789 gave the court jurisdiction to issue an order – called a mandamus – to a public official to perform a ministerial duty. Article III of the Constitution, however, enumerated the type of cases in which the Supreme Court had original, rather than only appellate, jurisdiction. Marbury’s suit was not among those cases. Marshall took the opportunity to write an opinion that explained in considerable detail why the Supreme Court could review a law passed by Congress and signed by the President, and rule that it was unconstitutional and thus could not be enforced. In doing so, the Chief Justice concluded by declaring the jurisdictional grant to the Supreme Court for this kind of suit was contrary to the Constitution and must be dismissed. Having achieved the result he wanted, President Jefferson was hardly in a position to disagree with Marshall’s judgment. The Court, by ruling as it did, and stating that it is” emphatically the province of the judicial department to say what the law is” with Presidential approbation, no less established the principle of judicial review for the (so far) entire future of the nation.

Fast forward to June 28, 2012. Chief Justice Roberts authored a 5-4 opinion which sided with the President in upholding the controversial Obamacare law, the Constitutionality of which was seriously questioned. Roberts spent nearly as much page time explaining why the law could not be upheld on the ground that it was a necessary and proper use of Congressional Power under the Commerce clause, which was the stated Constitutional basis. But the Chief Justice upheld the law on the ground that it was a Constitutional tax, something its proponents, including President Obama, had taken great pains to deny from the beginning. Nevertheless, having the administration’s position upheld, albeit at the price of the first judicially articulated limit on Congressional power under the Commerce Clause, Obama, like Jefferson, can hardly criticize the Court. This lends a considerable amount of prestige to the Court, and to Roberts, because he used some of the most time honored judicial principles, to decide a case on narrow grounds, and to read a statute in a manner that would uphold its Constitutionality if at all possible.

Now, technically speaking, Marbury’s explication of the principle of judicial review and NFIB v. Sebelius’s commerce clause analysis were not necessary to the outcomes of either case. They were what lawyers term obiter dicta, and not necessarily binding precedent. (Probably the most noted exercise in dicta was Dred Scott’s statement that Congress could not prohibit slavery in the territories.) Nevertheless, a Texas Supreme Court justice is reported to have opined that “there’s dicta, there’s strong dicta, and there’s damn strong dicta.” Dicta coming from the highest Court in the land, clearly qualifies as the latter.

As for the actual holding of the case, Roberts applied the “duck analysis” (if it looks, walks, quacks) to decide that the so-called individual mandate is actually a tax. Perhaps that is what former Speaker Pelosi meant when she said Congress had to pass it so we could find out what was in it. Surprise! A brand new tax, and one that falls mainly on those making less than $250K a year. The proponents sold the bill as not a tax increase; when interviewed on cable and broadcast news shows, the laws defenders insisted that the mandate was not a tax, and President Obama vowed not to increase taxes on middle income Americans. The odor we smelled over and over again during the Congressional battle over Obamacare was that of mendacity. Fraud, actually.

The downstream effects of this newest judicial finesse depend primarily upon what cases and controversies come before the Court.  We now have an articulated limitation on the scope of the Commerce Clasue. Maybe that will put a brake on some of the more ambitious left-wing fantasies.  It is much harder to sell a tax increase.  The ultimate fate of Obamacare, however, lies in the hands of the next Congress and President, the hands of the electorate this November, and, ultimately, in the invisible hand of Adam Smith.

Also see http://blogs.the-american-interest.com/wrm/2012/06/28/biggest-winner-in-healthcare-decision-the-founders/
and
http://www.realclearpolitics.com/printpage/?url=http://www.realclearpolitics.com/articles/2012/06/28/the_chief_justices_gambit_114646-full.html

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