Institutionalism and 11-393

So.  Some of the early speculation about Chief Justice Roberts' opinion in National Federation of Independent Businesses (known by me affectionately as 11-393) is that he was motivated by institutional concerns.  That's gotten me thinking about the legal history literature on institutionalism and the Supreme Court.  We've known for a long time that Roberts is a huge fan of Chief Justice Marshall.  

I'm wondering if this insight (or perhaps speculation is a better word?) will re-ignite an interest among legal historians about how Marshall's concern for building the Supreme Court as an institution influenced his decision-making?  We've seen some discussion of this of late in G. Edward White's Law in American History (which follows in this regard White's magisterial The Marshall Court and Cultural Change).   And because I'm working on edits on University, Court, and Slave it makes me think also of the Taney Court's approach to Dred Scott, which had a rather different approach to the Supreme Court as an institution.  Taney -- and also John Campbell, who's more at the center of my discussion than is Taney -- drew the Court's authority to try to establish an idiosyncratic interpretation of the Constitution.  It seems like living through an episode where we see a justice's institutional concerns may give renewed credence to that as a category of historical analysis.

As I'm thinking about this some more, I also wonder the effect of Roberts' opinion -- will this deflate the popular constitutional ideas about the limits on Congress' power?  I'm quite unclear about the Supreme Court's power to legitimize or defeat public constitutional ideas in the nineteenth century, but very interested in that ambiguous relationship.

Update: Over at The Atlantic blog, Daniel Epps has an extended discussion of the parallels between Roberts' opinion and Marbury, a point that Matt Bodie made in the comments this morning.

Comments

[Matt Bodie]

I see a comparison to Marbury in the outcome here -- give the government the immediate victory, but establish the underlying legal theory in the opinion. The decision is a "win" for the administration, but there is now a majority opinion with much stronger Commerce Clause and Spending Clause limitations.

[AGR]

The good thing is that the Commerce Clause battle can be fought another time. Laying the groundwork for things is a tricky, not at all certain, business.