The Case Against Judicial Restraint: ObamaCare Edition


Clarence Thomas and Antonin Scalia debate the ObamaCare ruling with John Roberts.

Did Chief Justice John Roberts switch sides in the ObamaCare case, voting originally to strike down the individual mandate for exceeding Congress' powers under the Commerce Clause, only to change his mind later and vote to uphold the mandate as a legitimate exercise of Congress' taxing power? There's some evidence that he did. If that is indeed what happened, why did he do it?

Like my colleague Peter Suderman, I find it difficult to believe that the chief justice changed his tune because he was worried about what The New York Times or some other liberal outlet would say about him. Roberts is no fool. He knows perfectly well that any new fans he acquired last week will evaporate the moment he casts a more conservative vote in a future case.

And it's not like the chief's decision came as a total surprise. There was always the distinct possibility he would uphold the mandate and frame his vote as an act of judicial restraint.

In my view, Roberts most likely had a divided mind on the case from the start. On the one hand he clearly found the government's unprecedented theory of Commerce Clause power to be constitutionally defective, yet on the other hand he couldn't shake his belief that ObamaCare was entitled to significant deference by the federal courts. So he split the difference and justified his decision by falling back on well-worn arguments in favor of judicial restraint, including an admiring nod to the Court's most famous proponent of deference, Justice Oliver Wendell Holmes, plus a none-too-subtle suggestion that disgruntled conservatives take their complaints to the ballot box. As Roberts put it, "It is not our job to protect the people from the consequences of their political choices."

The Cato Institute's Ilya Shapiro describes Roberts' position as "judicial pacifism," and I think that's exactly right. Rather than acting as a check on the other branches of government—which is what the Supreme Court should always do—Roberts' act of deference gave Congress and the White House the benefit of the doubt.

For a nice summary of why that approach is wrong, look no further than the U.S. Court of Appeals for the 11th Circuit, which voted to strike down the individual mandate last year. "When Congress oversteps [the Commerce Clause's] outer limits," the 11th Circuit declared, "the Constitution requires judicial engagement, not judicial abdication."