I wasn’t surprised that the challenge to the constitutionality of Obamacare didn’t command five votes at the Supreme Court. But it did surprise me that the hold-out, so to speak, was Chief Justice Roberts rather than Justice Kennedy.
Why didn’t Roberts pull the trigger? Charles Krauthammer attributes his decision to the fact that, as Chief Justice, Roberts sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature. As such, says Krauthammer, Roberts is acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Thus, he saved Obamacare in order to avoid the further erosion that might result from striking down landmark legislation.
Krauthammer may be right. One of his former clerks, Joshua Hawley, takes the same view.
But the Court’s status likely will be eroded more by the result Roberts reached than by a decision striking down Obamacare. Polls show that a solid majority of Americans oppose the individual mandate as an improper restriction on individual liberty. A Supreme Court that won’t step in to prevent such a restriction is likely to lose, rather than gain, esteem. Moreover, the fact that the majority went along with President Obama’s bait-and-switch – now it’s not a tax, now it is – may hurt the Court’s stature.
Thus, I propose a related but somewhat different explanation – Roberts’ strong commitment to “judicial modesty.” Roberts has spoken clearly about this commitment, and it’s time to take him seriously.
Judicial modesty is related to promoting the perceived legitimacy of the Court. An aggressive, immodest judiciary risks losing esteem. But the two explanations – Krauthammer’s and mine – aren’t identical. Judicial modesty is a theory of judging, not a theory of pure political expediency. And it is independent of Roberts’ status as Chief Justice. Unlike Krauthammer, I believe Roberts would have reached the same decision had he been an Associate Justice.
As a theory of judging, judicial modesty has merit as long as it isn’t taken too far. Rewriting a statute in order to save, as Roberts arguably has done, goes too far. Indeed, it’s not really a modest enterprise.
Moreover, sound theories of judging shouldn’t override sound theories of the Constitution. When Roberts’ nomination was pending, I worried about Roberts’ testimony that he lacks a single theory of constitutional interpretation. It looks like I didn’t worry enough.
For whatever the source of Roberts’ decision upholding Obamacare, I fear we may be back to about where we were before Roberts and Samuel Alito replaced William Rehnquist and Sandra Day O’Connor – with four liberal Justices, three conservative Justices, and two swing voters.