John Roberts: A Moderate Chief Justice

In my pre-ACA ruling posts, I was critical of Chief Justice Roberts but also still holding out hope that he’d find a way to thread the needle. Now I’m ready to congratulate him on a job well done. Here are what I regard as the highlights of the ACA ruling:

  • A sound principle of judicial restraint. I wrote earlier of the general need for judicial deference but Roberts got more specific in outlining a practical rule: It is the job of the justices to search for a Constitutional justification to uphold the law, not a Constitutional excuse for striking it down. So, even though he was unconvinced by the Commerce Clause arguments and seems to regard Obamacare as bad policy, he was willing to uphold it on the grounds that the “mandate” and “penalty” function sufficiently like a tax and thus fall within the legitimate scope of Congress’ Constitutional powers.
  • The debate over the Commerce Clause. I share some of Roberts’ concerns about the seemingly infinite reach of the Commerce Clause. I think we do need to find or agree on some reasonable modern limitation on what that power means. But I don’t think that limit is to be found in the activity/inactivity distinction. Here I side with Ginsberg. Part of her dissent boils down to this: Just because we can imagine a power being abused does not mean that it is unconstitutional. So the specter of Congress ordering us all to buy broccoli does not mean that the Commerce Clause can’t include the health insurance mandate.

I’ve seen conservatives villainize Roberts for his decision and liberals lionize him. Then there were conservatives who claimed that the Commerce Clause portion of the ruling represents a silver lining and those liberals who pointed to it as a dark cloud on the horizon.

From the standpoint of moderation, however, I can’t help but see the portions of the ruling regarding the individual mandate as a victory.* The Court avoided a party-line vote on a contentious partisan issue. Roberts found a argument that would allow him to both declare his ideological preferences (no on the Commerce Clause) and uphold the law as Constitutional (yes on the taxation power). The idea of the Court as the legal branch (rather than merely a partisan branch) received another boost. Just the kind of institution-strengthening decision I was hoping for.


* I’m still trying to sort out the Medicaid part of the ruling. But that can wait for another post.

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