Roberts’ judicial self (7/1/2012)

The chief justice of the Supreme Court upheld the old adage that policy decisions are best left to elected representatives, writes David Adler.

Chief Justice John Roberts’ opinion for the Supreme Court upholding the controversial Affordable Health Care Act will long be remembered as the decision that preserved for President Barack Obama the historical achievement pursued by various presidents, both Democrats and Republicans, for the past century: the vast expansion of health care for Americans. It will also be widely noted among students of the judiciary for its singular emphasis on the doctrine of judicial self-restraint, a well-heeled approach to constitutional interpretation that reflects the tenets of the founders and plumbs the depths of Anglo-American legal history. Best understood as deference to the legislature, judicial restraint exalts the principle that judges ought to refrain from imposing their own predilections so as to protect the right of elected representatives to make the most important policy decisions facing the republic.

Judicial deference, however, is not a synonym for judicial abdication, as Roberts has rightly said, but the court has a duty to “save” the statute, if at all possible, even if it finds the legislation personally objectionable, as Roberts almost certainly did. His lament was captured in a pointed lecture to the American voters: The court cannot save voters from the choices made by the representatives whom they elect.

Roberts’ exercise in judicial navigation — steering the court’s ship to a harbor charted by judicial restraint — could not have been more timely in light of the increasing criticism that its conservative majority was guided by its own partisan political lights. The Supreme Court’s reputation had suffered as a result of its decision in Bush v. Gore in 2000, and Roberts had indicated in his testimony before the Senate Judiciary Committee that he was committed to husbanding the reputation and prestige of the Supreme Court. He has done that, for now, and in the process may have reintroduced himself and his brand of jurisprudence to the American people.

Roberts’ opinion, unlike that of his more doctrinaire conservative colleagues, seemed to have channeled the pragmatism of his mentor, the late Chief Justice William Rehnquist, whose opinions more than occasionally raised the blood pressure of Justice Antonin Scalia. There was also the hint of a chief justice trying to straddle the deepening divide between the two wings of the Supreme Court in the manner of another chief — Charles Evans Hughes — whom Roberts deeply admires. It’s too soon to know if the present court will become known as the Roberts Court rather than the Kennedy Court, for only time and the high court’s docket, which next term is likely to include controversial cases involving same-sex marriage and affirmative action issues, will tell.

In the meantime, the court’s most important domestic law decision since Brown v. Board of Education will aid 40 million more Americans in gaining access to health care. That is a staggering achievement.

Adler is the Cecil Andrus Professor of Public Affairs at Boise State University, where he is director of the Andrus Center for Public Policy.