LIBERALS and conservatives were exercised and confused by the combination of Chief Justice John G. Roberts Jr.’s vote to uphold the Affordable Care Act’s tax subsidies on Thursday and his dissent from the Supreme Court’s decision recognizing a constitutional right of same-sex marriage
on Friday. Both sides accused him of voting politically: On Thursday he
was taken to task by the right, and on Friday by the left.
In
fact, the chief justice’s votes in both cases were entirely consistent
and constitutionally principled. He embraced a bipartisan vision of
judicial restraint based on the idea that the Supreme Court should
generally defer to the choices of Congress and state legislatures. His
insistence that the court should hesitate to second-guess the political
branches regardless of whether liberals or conservatives win is based on
his conception of the limited institutional role of the court in
relation to the president, Congress and the states.
On
Thursday, when Chief Justice Roberts wrote a 6-to-3 decision preserving
a key part of the Affordable Care Act (for the second time), Justice Antonin Scalia
accused him once again of engaging in liberal judicial activism. “The
somersaults of statutory interpretation” the chief justice had performed
in both health care cases, Justice Scalia wrote, signaled to America
“the discouraging truth that the Supreme Court of the United States
favors some laws over others, and is prepared to do whatever it takes to
uphold and assist its favorites.”
The
Roberts-Scalia debate is part of a longstanding argument about how
judges should interpret laws passed by Congress. As Chief Judge Robert
A. Katzmann of the United States Court of Appeals for the Second Circuit
in New York argues in his recent book, “Judging Statutes,” the chief
justice embraces an approach called “purposivism,” while Justice Scalia
prefers “textualism.” In Judge Katzmann’s account, purposivism has been
the approach favored for most of American history by conservative and
liberal judges, senators, and representatives, as well as administrative
agencies. Purposivism holds that judges shouldn’t confine themselves to
the words of a law but should try to discern Congress’s broader
purposes.
In
the 1980s, when he was a lower court judge, Justice Scalia began to
champion a competing view of statutory interpretation, textualism, which
holds that judges should confine themselves to interpreting the words
that Congress chose without trying to discern Congress’s
broader purposes. (By contrast, originalism, which Justice Scalia also
embraces, holds that judges should consult both text and history to
understand constitutional meaning.) Textualism, in this view, promises
to constrain judicial activism by preventing judges from roving through
legislative history in search of evidence that supports their own policy
preferences. But in the view of its critics, like Chief Judge Katzmann,
textualism “increases the probability that a judge will construe a law
in a manner that the legislators did not intend.” Chief Judge Katzmann,
who was appointed by President Bill Clinton, also accuses Justice Scalia
of inconsistency for consulting the intent of the framers in the case
of constitutional interpretation but not statutory interpretation.
Chief
Justice Roberts echoed these criticisms of textualism in his decision
holding that federally created health exchanges were eligible for tax
subsidies. “Congress passed the Affordable Care Act to improve health
insurance markets, not to destroy them,” the chief justice wrote, in a
line that enraged conservatives. “If at all possible, we must interpret
the Act in a way that is consistent with the former, and avoids the
latter.”
The
chief justice’s embrace of bipartisan judicial restraint in the second
Affordable Care Act case was consistent with his embrace of the same
philosophy in the first Affordable Care Act case in 2012, where he
quoted one of his heroes, Justice Oliver Wendell Holmes Jr: “The rule is
settled that as 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.”
By
construing the Affordable Care Act, twice, in ways that respect
Congress’s broader purposes rather than thwarting them, Chief Justice
Roberts was not, as Justice Scalia charged, rewriting the law. Instead
he was advancing the view that he championed soon after his
confirmation: In a polarized age, it is important for the Supreme Court
to maintain its institutional legitimacy by deferring to the political
branches.
The
chief justice’s dissent on Friday from the court’s 5-to-4 decision
recognizing a right of same-sex marriage defended precisely the same
vision. Once again, he quoted Justice Holmes for the same proposition
that he invoked in the Affordable Care Act cases: “As this Court has
been reminded throughout our history, the Constitution ‘is made for
people of fundamentally differing views.’ ”
His
dissent in the marriage equality case is undoubtedly the fieriest
opinion the chief justice has written on the court. “Five lawyers have
closed the debate and enacted their own vision of marriage,” he writes.
He compares Justice Anthony M. Kennedy’s same-sex marriage opinion to
Roe v. Wade and to Lochner v. New York, a 1905 case striking down maximum hour laws for bakers, both of which he considers prime examples of judicial activism.
CHIEF
JUSTICE ROBERTS insists that his passionate opposition to Justice
Kennedy’s majority opinion is based on his commitment to judicial
restraint, not on his personal disagreement with same-sex marriage. In
his dissent on Friday, the chief justice said he would not “begrudge”
the celebrations that would follow. Instead, his passions were engaged
by his commitment to the court’s limited role in American politics.
However,
the chief justice’s commitment to judicial restraint and a limited
conception of the court’s institutional role is not unvarying. He has
written or joined opinions striking down federal campaign finance laws
and voting rights laws. Earlier last week, he wrote an opinion for the
court that removes one of the last New Deal farm programs propping up
price supports for raisins as a violation of the Fifth Amendments
prohibition on takings of property without just compensation. In all of
these cases, however, Chief Justice Roberts identified a particular
clause of the Constitution — the First Amendment, the Fifth Amendment or
the 14th Amendment — that he believed invalidated the federal law in
question. In the marriage equality case, he concluded that no clause of
the Constitution clearly protected a right of marriage equality, which
is why he accused the majority of substituting its own policy
preferences for those of the people, as reflected in state legislation.
It’s
understandable that liberals and conservatives are disappointed with
the chief justice for rejecting positions they deeply favor. But Chief
Justice Roberts’s relatively consistent embrace of judicial deference to
democratic decisions supports his statement during his confirmation
hearings that judges should be like umpires calling “balls and strikes.”
As he put it then: “Umpires don’t make the rules, they apply them. The
role of an umpire and a judge is critical. They make sure everybody
plays by the rules, but it is a limited role. Nobody ever went to a
ballgame to see the umpire.”
Although
the chief justice’s statement was subsequently mocked, both the
Affordable Care Act cases and the marriage equality case show that he
meant what he said. Whether writing for the majority or in dissent, he
believes that judges should set aside their policy views and generally
uphold laws unless they clash with clear prohibitions in the
Constitution. In the long term, if he continues to pursue this
conception of the deferential role of the court, he may help liberals
and conservatives more readily accept their Supreme Court defeats.
1 comment:
Sounds like a fair critique.
Post a Comment