Jewish World Review July 12, 2012/ 22 Tamuz, 5772
The art of self-restraint
By Paul Greenberg
Granted, it was not the most popular decision ever rendered by a chief justice of
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
After reciting every argument why
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
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
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
Now another chief justice of the
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,
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
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
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