In 1832, around the time President Andrew Jackson was uprooting the eastern Indian tribes for their forced trans-shipment to the far west, the state of Georgia became entangled in a jurisdictional dispute with the Cherokees that was resolved when the Supreme Court ruled the Cherokees were a separate nation and therefore not subject to Georgia law on their own tribal lands.
An apocryphal story which first appeared 32 years later in Horace Greeley's The American Conflict, told how an irritated Old Hickory received the unwelcome news with the quip: "John Marshall has made his decision, now let him enforce it!"
Thoughts of that story, or the lessons of judicial legitimacy derived from it, may have been running through the mind of Chief Justice John Roberts last Thursday when he surprised the nation by casting the Supreme Court's deciding swing vote validating the constitutionality of the Affordable Care Act.
While we like to think of the Supreme Court as a judicial rather than a political branch, it has often been said that justices follow the election returns. Whether true or not, Chief Justice Roberts could not have overlooked recent polls showing just 46% of Americans hold the Court in high regard -- an appallingly low public standing given the Court's previous track record that is directly linked to the public's growing conviction (after abominations like Bush v. Gore and Citizens United) that what Alexander Hamilton once called America's "least dangerous branch" has been thoroughly overtaken like everything else in Washington by rank partisanship.
I am not one of those who thinks Justice Roberts's surprising turnaround this week was motivated by a sudden change of heart, or burst of patriotism or renewed sense of respect for the history and traditions of the Court.
Along with New York Times legal correspondent Linda Greenhouse, I believe Robert's decision to side with the liberals in upholding the ACA was entirely tactical.
Roberts's prudence was a case of discretion being the better part of valor. He is a jurist who surely understands that the only real authority the Supreme Court possesses is the one identified long ago by the late, great constitutional scholar Alexander Bickel, who said the Supreme Court has neither "force nor will" to compel compliance and so must rely for its power on "society's striving for the rule of principle, its readiness to receive principle from the Court and its strong habit-formed inclination to accept, to accord, to harmonize and to obey."
That fragile legitimacy was threatened had the health care decision gone the other way. And whereas the other, mostly aging, conservatives on the Court spied a fat, ripe target for achieving their aim to fundamentally change American law, the much younger Chief Justice perceived a potential trap.
He saw that he might forever discredit his conservative majority, and perhaps impair the legitimacy of the Court for years to come, should he indulge his ideological proclivities by using a bare 5-4 conservative majority to overturn a law duly-enacted by the elected branches after a prolonged debate that consumed American politics for more than a year, on a subject sought by presidents of both parties dating back more than 70 years, whose solution was based on principles the Republican Party itself has supported in the past, and whose invalidation by the Court would have directly impacted the life-and-death concerns of tens of millions of Americans.
Given those conditions and potential consequences, Roberts displayed a quality not evident from his four conservative colleagues: Patience.
As Greenouse says, having just completed his seventh term as Chief Justice and, at 57, looking forward to another quarter-century or longer on the Court, Justice Roberts showed by his ruling last week that he is clearly "playing a long game."
Like most conservative jurists who are long-time members of the right wing Federalist Society, groomed within its codes and rituals, Roberts is a committed conservative ideologue who believes the United States took a wrong turn a century or so ago, constitutionally-speaking, and needs people like him to guide it back to the path of righteousness and right-thinking.
In a critical 2009 New Yorker profile of the Chief Justice titled "No More Mr. Nice Guy," author Jeffrey Toobin called Roberts "the Supreme Court's stealth hard-liner."
Justice Antonin Scalia's radical intentions are well known, but his "gladiatorial spirit" has been taken over by Roberts, says Toobin, who now dominates the Court's public sessions.
Roberts's "hard-edged performance at oral argument," says Toobin, is more than just a rhetorical contrast to the image of the modest and humble "umpire" calling balls and strikes that Roberts sought to convey during his confirmation hearings. After four years on the Court, "Roberts's record is not that of a humble moderate but, rather, that of a doctrinaire conservative," said Toobin.
Roberts's view of the world is one in which the Court "should almost always defer to the existing power relationships in society," notes Toobin. Thus, since becoming the nation's 17th Chief Justice, Toobin says Roberts has almost always sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.
"Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party," says Toobin.
The conservative legal movement (sometimes called the "Constitution in Exile") of which Roberts has long been a prominent fixture is one which believes the "modern, vibrant, mobile" and global economy of the 21st century can take care of itself through a combination of social competition and "individual freedom."
It is a society that conservatives believe can police itself without the interference of the regulatory state that has grown up since the Progressive Era at the turn of the last century, which the right sees as an expensive and burdensome encumbrance.
In his own New York Times essay on the subject, Jeffrey Rosen quotes one active defender of the Constitution in Exile movement as saying: "I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice. We want to withdraw judicial support for the entire modern welfare state."
Coincidentally, David Brooks used his New York Times column just two weeks ago to extol precisely that aim as exonerating the Tea Party-dominated Republican Party of its perceived lunatic "extremism." Republicans aren't nuts, says Brooks, just possessed of a different "point of view" that the direction of American history over the past several generations is wrong-headed. So, we need to dismantle the government we have and begin from scratch. Nothing radical about that.
Further, despite the familiar right wing complaints about liberal judges who "legislate from the bench," conservatives admit openly that to achieve their objective of rolling back the welfare and regulatory state it will be the Supreme Court that leads the way. As one conservative movement stalwart noted: "Judicial activism will have to be deployed. It's plain that the idea of judicial deference was a dead end for conservatives from the get-go."
In jurisprudence as in politics timing is everything. And so Justice Roberts seems willing to bide his time, chipping away at the liberal republic rather than taking a sledgehammer to it the way the Court's other four conservatives were eager to do last week.
Yet, we should not mistake Robert's patience and prudence last week for the abandonment of his more radical objectives, warns Greenhouse.
For most of his tenure, beginning after his conservative majority was solidified with the departure of Justice Sandra Day O'Connor and the arrival of Justice Samuel Alito Jr., Roberts's goal has been clear, writes Greenhouse. "It has been to turn the Court to the right on the hot-button issues of race, religion and abortion, as well as to harness the First Amendment as a deregulatory tool."
It's important to remember, says Greenhouse, that Roberts's mentor and predecessor was Chief Justice William H. Rehnquist, who was himself "a master of the long game" who was willing to "tack left" if doing so achieved his larger objective of moving the law further and further to the right, which means in favor of America's privileged classes.
In 2000, notes Greenhouse, Rehnquist wrote a majority opinion over the furious dissents of Justices Antonin Scalia and Clarence Thomas that upheld the Miranda decision against Congressional efforts to declare these defendant rights inoperative.
"William Rehnquist didn't like Miranda v. Arizona when the Warren Court decided it in 1966, and he didn't like it any better in 2000," said Greenhouse. "But what he liked even less was an attempted Congressional incursion on the Supreme Court's authority to interpret the Constitution."
Perhaps the best way to understand what Chief Justice Roberts was up to this week is to view his surprising ruling as less a retreat or "switch in time that saved nine" than as a strategic redeployment that will allow his conservative majority to live to fight another day.
And so, while Democrats, the White House and those who care about the needs of the uninsured are entitled to celebrate last week's surprise ruling, liberals would also wise to keep up their guard -- and one eye on John Roberts -- remembering always Virgil's famous warning: "Beware of Greeks bearing gifts."