Gay Marriage

John Roberts Urges Judicial Deference to Congress on Obamacare, Judicial Deference to State Legislatures on Gay Marriage

"In every case we must respect the role of the Legislature, and take care not to undo what it has done."


Credit: C-SPAN

In his majority opinion yesterday in the Obamacare case King v. Burwell, Chief Justice John Roberts invoked the legal philosophy known as judicial deference:

[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.

Writing in dissent today in the gay marriage case Obergefell v. Hodges, the conservative chief justice adopted an equally deferential posture:

[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us….

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

I lost count yesterday of the number of liberals who cheered Roberts for his "principled" act of conservative judicial deference. I guess we'll have to wait and see how many of those same liberals celebrate Roberts today for wanting the Court to practice judicial deference two days in a row.