OPINION: John Roberts, the Umpire in Chief - JEFFREY ROSEN

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.

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. - Read More at NYT

John Roberts, the Umpire in Chief

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