It was June 1793, a summer of discontent for the nascent opposition in Washington, and Thomas Jefferson had a problem: A political adversary in Virginia was rumored to be contemplating a run for the House of Representatives. Jefferson, concerned that the House provided a powerful perch, hit on the idea of banishing the adversary to a political backwater instead. “Hence,” he wrote at the time, “I think nothing better could be done than to make him a judge.”
It was many years later, but on the question of whether the bench supplied a platform for power, the target of Jefferson’s machinations—John Marshall—laughed last. Still, Jefferson’s assumption that the bench was a political wasteland from which no influence could be exerted illustrates a perspective missing in constitutional considerations over the Affordable Care Act. The question the Court must answer is not merely whether the law is constitutional—the topic of virtually all the questions the justices asked—but also whether that decision is one for the judiciary to make.