Chief Justice Roberts' Marbury Moment

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American Thinker:

If the Supreme Court declares the Affordable Care Act unconstitutional, almost assuredly John Glover Roberts, Jr., the chief justice, will write the majority opinion.

Roberts' choice of words will weigh heavily on America's future. More than just resolving a politically charged case, his opinion could determine the extent to which our republic is and remains a nation under law. He must write a masterpiece not only for the present constitutional dilemma, but for the ages.

ObamaCare's constitutionality will be decided nearly two and one-tenth centuries after Marbury v. Madison, the landmark case best-known for establishing the doctrine of judicial review. Just as practically no one today other than constitutional scholars know the underlying legal dispute in Marbury v. Madison, few people a hundred years from now will know, much less care, about individual mandates or many other aspects of ObamaCare.

What will matter is something grander about the Constitution, and the role of government under the rule of law.

Roberts appears to be perfectly suited for the task. A Harvard Law School graduate, he clerked for the late Justice William Rehnquist, and then he was in the Justice Department before moving to private practice as an appellate lawyer.

With impeccable establishment credentials and a consummate Washington insider background, Roberts nevertheless seems to grasp the limited government principles and traditions of our uniquely American law. He's an outsider's insider -- a humble everyman in robes.

In a 2006 interview with PBS, Roberts discussed the most revolutionary aspect of the American Constitution, which is that it is the law over government and not merely a political document melded at will by political leaders. Chief Justice John Marshall's landmark opinion in Marbury v. Madison, Roberts notes, "says, what is the Constitution? It's law. It's law that the people have established to control this new government."

In this regard, the ObamaCare case is very much about more than just ObamaCare. It is about the extent to which the Constitution is binding as law that controls government, and what the Supreme Court will do to enforce that law on government.