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Chief Justice Roberts, please put off ObamaCare decision until 2013

Let’s be honest: The Supreme Court makes political decisions. To many, this statement is heresy. But that doesn’t make it any less true, as Professor Barry Freidman explains in his book "The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution." 

The two latest cases with historic, political overtones are officially referred to as case 11-393, National Federation of Independent Business v. Sebelius and case 11-400, Florida v. The Department of HHS. These two case challenge the constitutionality of the Affordable Health Care Act, more commonly known as “ObamaCare.” 

Right now, the Supreme Court’s public image is at a worrisome level ; less than 30% of likely voters rating the institution excellent or good. 

The High Court last waded into such political thicket during a presidential campaign back in 1936. -- President Franklin Delano Roosevelt sought re-election while the justices of the Supreme Court legally gutted his famed New Deal

A recent Gallup poll found an astounding 72% of Americans believed the fundamental glue to the president’s health care reform – the individual mandate – is unconstitutional.

Besides nearly all Republicans, many Democrats and independents are also opposed to the health care law. As legendary Supreme Court Justice Oliver Wendell Holmes warned in his classic book "The Common Law," legal decisions defying such collective wisdom threaten respect for the law.

So we ask: would the Supreme Court best serve America by intentionally delaying any substantive decision about the health care law until after the 2012 presidential election? 

This judicial sleight of hand will not be necessary should the Justices rule that the 1867 Anti-Junction Act prevents any decision before the law is fully operative in 2015. 

But once Chief Justice Roberts determines this is not the majority view, then he owes the Court and the country a calculated political delaying tactic. 

This can be easily done by quietly rounding up the votes for additional hearings after the new Supreme Court term begins on October 1. There is already a precedent for such a move. -- Justice Felix Frankfurter used a similar tactic to help win a unanimous decision in Brown v. Board of Education (1954). And it would guarantee no decision prior to the 2012  presidential election in November.

The Court’s authority to rule on ObamaCare’s legality is itself a product of brilliant legal politics by Chief Justice John Marshall. The Constitution doesn’t explicitly give the Supremes power to overrule an act of Congress. 

When the famed case of Marbury vs. Madison (1803), reached the Supreme Court, populists aligned with President Jefferson believed Congress was superior to the Judiciary as elected lawmakers represented the people’s will. 

But conservative Federalists like Marshall feared Jeffersonian Democrats would abuse legislative power. They viewed the Judiciary as a co-equal check and balance. William Marbury had been appointed by Federalist President John Adams to a judicial post. But Jefferson had taken office before Marbury’s pro forma paperwork got inked. The Virginian refused to let Secretary of State James Madison sign it. The angry Federalist sued.

The political irony would have delighted even Machiavelli. 

If Jefferson’s constitutional interpretation was right – the Judiciary lacked the power to declare an act of Congress unconstitutional – then Marbury could get the Supreme Court to force the president to give him the job.

But if Marshall adopted the Federalist position – the Judiciary had the constitutional authority to declare federal legislation creating Marbury’s job unconstitutional – then his long-time Virginia rival would win. However, the price for defeating Marbury would be to establish the Court’s power to overrule Acts of Congress.

Marshall had the perfect political case to lose the battle and win the war. So he persuaded all the Justices to back Jefferson over Marbury, thus making it impossible for the president to oppose their decision!

Fast forward to today -- the ‘ObamaCare” case risks a bitter Supreme Court split. 

The dueling sides will accuse each other of shredding the Constitution. Democrats and Republicans are already gearing up for a "scorched earth" campaign fueled by cash unleashed by the Supreme Court with its 2010 decision in Citizens United vs the Federal Election

The Supremes need to step back. There is no pressing need for a quick decision. Let Americans first “have it out” in the presidential campaign. It is time to trust the people for a change.

Paul Goldman is former chairman of Virginia’s Democratic Party. Mark J. Rozell is professor of public policy at George Mason University.