His old rival Thomas Jefferson knew just what John Marshall was up to, and complained bitterly. But it was too late. Mr. Jefferson had been outfoxed by his fellow Virginian. And the principle of judicial review was firmly established in American law and history.
Now another chief justice of the Supreme Court has handed down an unexpected ruling, sorely disappointing the partisans who had once cheered his appointment. His was the decisive vote on the court for this administration's new health-care plan, aka Obamacare.
Who'd a-thought it?
Only those who anticipated that, more than partisan advantage, this chief justice would value a principle -- that of judicial restraint. Or as he called it during his confirmation hearings, "judicial modesty." Didn't conservatives used to think such modesty a good thing in a judge, as opposed to that catch-all accusation, judicial activism?
Throughout his judicial career, John Roberts has emphasized the dangers of the courts' overreaching. Instead he has recognized the value of judges' deferring to the other branches of government, those that represent the popular will, and whose leaders are regularly held accountable to it at the polls. Unlike federal judges with their lifetime appointments.
Isn't judicial restraint still to be admired? Even if the law being deferred to is one that is deeply troubling. As the chief justice said of the federal judiciary in his majority opinion, "It is not our job to protect the people from the consequences of their political choices."
This chief justice's opinion in National Federation of Independent Business v. Sebelius may lack the crystalline logic of John Marshall's historic decision in Marbury, but not every chief justice can be a John Marshall. He was unique. Such a man, and jurist, may come along only once in a republic's history, and then only in its formative phase.
The essence of this latest instance of judicial restraint is that We the People have a right to our own mistakes. And the right to correct them. The chief justice now has recognized and respected a political decision made, appropriately enough, by our politicians. If it was the wrong decision, if it ought to be rethought or even revoked, changed in various particulars or reversed altogether, that is what elections are for.
The genius of American politics is its capacity for orderly change, its instinct for consensus. A new one waits to be shaped Tuesday, November 6.