Skip Navigation

Close and don't show again.

Your browser is out of date.

You may not get the full experience here on National Journal.

Please upgrade your browser to any of the following supported browsers:

Daring to Defer Daring to Defer

This ad will end in seconds
Close X

Want access to this content? Learn More »

Forget Your Password?

Don't have an account? Register »

Reveal Navigation



Daring to Defer

For Chief Justice John Roberts, embracing judicial modesty means finding limits in everything—including the role of the Supreme Court.


Umpiring: John Roberts(UPI Photo/Roger L. Wollenberg)

At the dawn of the week, liberal critics of John Roberts’s Supreme Court had the knives at the ready. In their minds, a twofer—the Court upholding Arizona’s punishing immigration law and striking down some or all of President Obama’s health care overhaul—would confirm what many have grown to suspect: The justices are hopelessly, and predictably, fractured along partisan lines, with the Court now just another divided institution in an era replete with them.

But you make assumptions about the high court at your peril. The justices largely invalidated the Arizona law, and Roberts himself saved the health care law, breaking from his conservative brethren in unprecedented fashion to join with the Court’s liberal wing to preserve the bulk of the Affordable Care Act.


In doing so, the chief justice may have demonstrated that he is the jurist that his many admirers thought he was in 2005, when President Bush nominated him. Remember that bit during his confirmation hearing about judicial modesty, about how a justice should be “an umpire”? Those words seemed to ring hollow in the wake of decisions such as Citizens United. Now, Roberts seems to have applied them in two disparate instances, surely disappointing legal conservatives who believed that their movement had gained unstoppable momentum, but reminding observers that most cases at the corner of First and Maryland are decided between the margins, not in them.

You can sense Roberts’s deft efforts throughout the health care opinion to find a result consistent with his conservative principles, one that mollifies the law’s detractors and its supporters. Both sides ended up with something. The opinion struck down the individual mandate under the commerce clause, but upheld it under Congress’s power to tax. (Woe to news organizations such as CNN that went live after reading just the first few pages of the 190-page-plus ruling.) The Court also curtailed the power of the federal government to bludgeon states into accepting a costly expansion of Medicaid.

Embracing judicial modesty means finding limits in everything. In that regard, Roberts’s majority opinion goes out of its way to assert that, yes, there is a point at which Congress cannot regulate the everyday actions of Americans, reproaching that body in a manner that likely hasn’t been done since the days of Franklin Roosevelt’s New Deal. Moreover, as Roberts points out in the decision, Congress’s power to tax comes with inherent limits; the government can’t use it to compel behavior (such as purchasing health insurance), but instead only to sanction.


For a jurist such as Roberts, however, just as important is identifying the limits on the Court itself as a functioning branch of government.

Roberts is committed to the notion that courts shouldn’t overturn the actions of democratically elected legislatures. Indeed, doing so is the kind of “judicial activism” that conservatives have historically deplored. The inestimable Linda Greenhouse, the longtime New York Times Court correspondent, predicted the result in the health care case, pointing to language that Roberts wrote in a dissent to the Court’s holding earlier this week that states can’t hand out life sentences to juveniles without a chance of parole. Courts, Roberts wrote, “must presume an Act of Congress is constitutional”—and he noted that a “heavy burden” exists for “those who would attack the judgment of the representatives of the people.”

“He really does believe that if there’s a possible way to read a statute to preserve its constitutionality, the Court should find a way to do it,” says Jonathan Adler, a law professor at Case Western Reserve University in Cleveland.

As a longtime Washington litigator and a former U.S. deputy solicitor general, Roberts is a full-fledged member of the establishment, which makes him particularly ill-suited to lead a conservative insurgency. He works in subtler ways—but his familiarity with the levers of power means that he should never be underestimated.


Even though many conservatives are bemoaning the health care ruling, Roberts’s ensuring that the individual mandate will now be rebranded as a tax not only hands the GOP some new ready-to-go talking points but it also means that voters can perhaps express their resistance with greater clarity at the ballot box, rather than at the courthouse steps. Remember, the Obama White House was never comfortable during the health care debate with labeling the requirement to purchase insurance as a tax because of the term’s negative implications. It’s a lousy sell.

“As long as Congress can acknowledge something is a tax,” Adler says, “then we can let the political process work.”

It will be tempting in the short term to look at the decision, see Roberts aligned with the likes of Ruth Bader Ginsburg and Elena Kagan, and wonder whether the chief was briefly possessed by the spirit of a predecessor, Earl Warren. But Roberts knows what he’s doing. In a week when Justice Antonin Scalia’s screed from the bench about illegal immigration made the Court particularly susceptible to the charge that it has become an agenda-first body, Roberts’s move was a means to reassure an increasingly skeptical public that the justices really do try to solve problems in a principled way. He reasserted the importance of courts’ deferring to the will of legislatures, something that should resonate with conservatives, in particular. He helped set limits on the power of the commerce clause and Congress’s spending powers. And he ensured that if President Obama wants to rescue his health care law from the threat of repeal, he will have to defend it as a tax.

All in all, not a bad day at the office. 

This article appears in the June 30, 2012 edition of National Journal Magazine.

comments powered by Disqus