Was Chief Justice John Roberts' unconvincing opinion affirming the constitutionality of the Affordable Care Act's individual mandate driven by bad faith? Or was it instead grounded in a coherent but incorrect conception of judicial duty? Over at the Volokh Conspiracy, Professor Orin Kerr charges that Professor Randy Barnett and Ilya Shapiro have wrongly painted Roberts' opinion for the Court in NFIB v. Sebelius (2012) as a "fundamentally deceitful" opinion rather than the opinion of a judge who is "honest to the law and his judicial oath."
Kerr casts Barnett and Shapiro's arguments as instances of a profoundly troubling dynamic which Kerr terms "the politics of delegitimization"--a dynamic that is convulsing American political life. Increasingly, Kerr observes, "[P]eople who are barriers to good results . . . aren't described as simply disagreeing in good faith . . . [T]hey are illegitimate. They are acting in bad faith. Their motives are corrupt."
Kerr's analysis of the politics of delegitimization is vivid and persuasive. But Barnett and Shapiro are not part of the problem that he has identified. Barnett and Shapiro do not criticize Roberts for any corrupt motives but for his reliance upon a deeply flawed conception of judicial duty--one which rests upon a majoritarian theory of our constitutional order and which counsels broad judicial deference (or "judicial restraint") when democratic enactments are challenged in court. It is thus majoritarianism and judicial restraint that are the true objects of Barnett and Shapiro's criticisms--and rightly so. Our constitutional order is not fundamentally majoritarian and judicial restraint is both incompatible with judges' Article III duties and incapable of delivering constitutionally limited government.
The section of Roberts' NFIB opinion in which he determined that the ACA's individual mandate was authorized by Congress's power "[t]o lay and collect Taxes" is labored and unpersuasive. As Professor Robert G. Natelson has shown, the word "tax" in the Constitution refers to a particular kind of thing with a particular function--a financial charge imposed primarily to raise revenue, not to serve regulatory purposes. The ACA's individual mandate was plainly designed for regulatory purposes--to coerce people into buying health insurance. That is why the ACA refers to the mandate as a "penalty" some 18 times. In his NFIB opinion, Roberts acknowledged that construing the mandate as a tax was not the "most natural interpretation of the mandate." Nonetheless, he considered himself duty-bound to adopt any "fairly possible" interpretation that would "save [the] statute from unconstitutionality" and he determined that such a saving construction could be adopted.
It is not hard at all to understand why Roberts took this approach. "Judicial restraint" has been a conservative mantra for decades. Roberts' own elevation to the Court cannot be understood except in connection with a conservative legal movement that touted judicial restraint as the supreme judicial virtue. Roberts dutifully recited the tenets of restraint at his confirmation hearing, emphasizing his "humility," his "modesty," and his unwillingness to second-guess legislators. Restraint is a dominant theme of not only Roberts' judicial opinions but of his occasional extrajudicial commentary on the constitutional role of the Court and the judiciary more generally.
It would thus be a mistake to charge Roberts with acting in an unprincipled manner, and neither Shapiro nor Barnett do so. Shapiro argues that Roberts acted "out of a misbegotten devotion to judicial restraint." Barnett emphasizes that Roberts was not taking an "unprincipled position" but, rather, drawing upon a principle that has long been part of American political life and has informed judges' conception of their duty. The principle, as articulated by Roberts in NFIB: "It is not [the Court's] job to protect the people from the consequences of their political choices." This principle is rooted in a majoritarian conception of government--it holds that judicial nullification of the people's "political choices" is presumptively illegitimate.
The majoritarian principle upon which Roberts relied is a principle. It is also a very bad principle--a principle that is profoundly hostile to the rule of law established by our Constitution. Ours is a republican Constitution--it establishes a system of representative government that is designed to protect individual rights. To secure our rights, "We the People" delegate limited powers to our agents in government to act on our behalf. One of the principal mechanisms through which the Constitution ensures that our agents in the legislative and executive branches of government do not betray the public's trust is an independent system of federal courts, staffed by judges who are duty-bound to give effect to the law of the land. In performing their duty, judges give effect to the only "political choices" that should be dispositive in constitutional cases--those which are concretized in the Constitution.
Judges who draw their power from Article III have a duty to exercise independent judgment in interpreting the meaning of the Constitution and the meaning of subordinate enactments. They also have a duty to be impartial in adjudicating disputes. Discharging these duties in cases involving challenges to government actions requires consistent judicial engagement--a genuine effort to determine the legality of the government's true ends and the means chosen to advance them, grounded in admissible evidence, without deference to the beliefs or desires of government officials.
At present, the Supreme Court's jurisprudence requires judges to abdicate their duties of independent judgment and impartiality in many areas of our law. Judicial abdication, in the form of the so-called "rational-basis test," is the rule in cases involving patently protectionist licensing schemes that thwart countless' Americans entrepreneurial pursuits. Judicial abdication, in the form of "Chevron deference," is the rule in cases involving challenges to sweeping power claims by federal agencies that are grounded in those agencies' interpretations of broadly-worded federal statutes. Judicial abdication, in the form of "Auer deference," is the rule in cases involving challenges to agencies' interpretations of regulations that the agencies themselves issue. In all of these settings, judges systematically and broadly defer to the will of the most powerful of parties: the government. In all of these settings, individuals often have no meaningful legal recourse when confronted with assertions of government power.
Thus, rather than focusing on Roberts personally, supporters of limited government should be focusing on the malign majoritarian principle behind his decision--the principle to which Barnett and Shapiro direct our attention. Further, they should seek an alternative to judicial restraint--a judicial approach that is consistent with judges' Article III duties and equips judges to enforce the Constitution's limits on government power. In judicial engagement, they have such an alternative. So long as judicial restraint is preached and practiced, we can expect the rule of law to continue to give way to the will of men.