Judicial restraint is the idea that judges should defer to the will of lawmakers whenever possible, turning to the U.S. Constitution on only the rarest of occasions in order to nullify a duly-enacted law. One of the earliest and most influential proponents of this idea was Supreme Court Justice Oliver Wendell Holmes (1841-1935), who routinely criticized his fellow justices for striking down legislation and preventing “the right of the majority to embody their opinions in law.” As Holmes once put it, “If my fellow citizens want to go to Hell I will help them. It’s my job.”
Holmes was a great hero to the left-leaning activists of the Progressive era, who enjoyed reading his sharply-worded dissents attacking the Court’s majority for striking down various economic regulations. But judicial restraint has also had its champions on the American right. Conservative legal icon Robert Bork, for example, famously argued that “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities,” and that judges should therefore act accordingly by deferring to lawmakers on most matters.
Chief Justice John Roberts also believes in judicial restraint, or judicial modesty, as he described it during his 2005 Senate confirmation hearings, and that belief came shining through yesterday in his majority opinion in National Federation of Independent Business v. Sebelius. Although Roberts rejected the Obama administration’s novel claim that Congress may force Americans to buy health insurance as part of its power to regulate interstate commerce, he nonetheless found the health insurance mandate to be lawful under a different constitutional provision, Congress’ power to “lay and collect taxes.”
“The text of a statute can sometimes have more than one possible meaning,” Roberts wrote, before proceeding to embrace the only possible meaning that would allow the statute to survive. “The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution,” he continued. “Granting the Act the full measure of deference owed to federal statutes, it can be so read.”
And so judicial restraint reared its head. In fact, as an authority for his deferential maneuvering, Roberts turned to none other than Justice Holmes, citing the famous jurist’s concurring opinion in the 1928 case of Blodgett v. Holden, which declared, “between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”
In other words, the tie goes to the government.
Many of Roberts’ critics will no doubt be tempted to denounce this ruling as an example of judicial activism. But in fact the opposite is true. By employing a method of statutory interpretation designed to give Congress and the White House the benefit of the doubt, Roberts exhibited the hallmarks of judicial restraint. “It is not our job,” he declared, taking yet another page from Holmes’ playbook, “to protect the people from the consequences of their political choices.”
Today’s conservatives frequently complain about the dangers of judicial activism. Perhaps now they’ll be more alert to the dangers of judicial restraint.
Damon W. Root is a senior editor at Reason magazine.