Chief Justice Roberts: 'In Every Case We Must Respect the Role of the Legislature, and Take Care Not to Undo What It Has Done'

The role of judicial deference in King v. Burwell.


Credit: C-SPAN

In his June 2012 opinion upholding the constitutionality of the Patient Protection and Affordable Care Act in National Federation of Independent Business v. Sebelius, Chief Justice John Roberts invoked the legal principle known as judicial deference or judicial restraint. "It is not our job," Roberts wrote, "to protect the people from the consequences of their political choices."

Three years have passed and once again the chief justice has invoked judicial deference in a major ruling that saves Obamacare from legal harm. Here is the conclusion to Roberts' majority opinion today in the health care subsidies case King v. Burwell:

[I]n every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress's plan, and that is the reading we adopt.

Back in June 2012, in the wake of the first Obamacare ruling, I wrote the following passage, which I submit is still relevant today:

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….

Today's conservatives frequently complain about the dangers of judicial activism. Perhaps now they'll be more alert to the dangers of judicial restraint.