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The art of self-restraint

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Granted, it was not the most popular decision ever rendered by a chief justice of the United States. Its immediate result was particularly unpopular with those who over the years had shared his own political loyalties and ideological tendencies.

The chief justice drafted his opinion carefully, methodically, logically, upholding one argument after another against the very conclusion he would finally reach. When he did reach it, many were surprised, quite a few were shocked. He was accused of betraying not just his party's interests but the very logic he'd followed right up to his last change of course.

I'm talking, of course, about John Marshall's decision in Marbury v. Madison, the decision that enshrined the principle of judicial review in American constitutional law. That principle isn't explicitly mentioned in the Constitution even though it could be readily inferred; Marbury v. Madison spelled it out definitively.

After reciting every argument why William Marbury, his fellow Federalist, should receive his commission as a justice of the peace in the District of Columbia, the chief justice refused to order the new secretary of state to deliver it. Even though John Marshall himself had sought, unsuccessfully, to have it delivered when he was acting as John Adams' secretary of state in the waning hours of the Adams administration.

Indeed, like Mr. Marbury, the chief justice had been one of the many "midnight appointments" that the country's last Federalist president had made in an attempt to keep the judiciary from being shaped by the incoming administration of Thomas Jefferson.

But the chief justice withstood the partisan temptation to order Mr. Marbury's commission delivered. He had a larger object in mind. He rejected his fellow Federalist's plea on the ground that it had been brought to the wrong court. He reasoned that, according to the Constitution, the Supreme Court heard only appeals in cases like Mr. Marbury's -- that it was not a court of original jurisdiction. And the Judiciary Act that had given his court such jurisdiction was in conflict with the Constitution and therefore void. It was the first time an Act of Congress had been declared unconstitutional. It would not be the last.

The chief justice had sacrificed Mr. Marbury's commission but secured the authority of his court and the American judiciary to overrule legislative acts. His historic decision made the judiciary the final arbiter of American law -- an immense power indeed.

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.

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