The Trouble With John Roberts’ Brand of Legal Conservatism

“Roberts does have an underlying judicial philosophy that motivates him in many of these big cases; it just happens that this philosophy has rapidly fallen out of favor among many of his fellow conservatives.

I am referring to the philosophy of judicial deference or restraint, which, in a nutshell, is the idea that people should take their complaints to the ballot box, not to the courthouse.”

“That deferential view is not as popular among conservatives today as it once was. But Roberts can still be seen carrying the Holmes/Bork torch.

During his 2005 Senate confirmation hearings, for instance, Roberts tried to put a positive spin on Kelo v. City of New London, a recently decided case that left many conservatives fuming, angry that the Court had shortchanged property rights in favor of a controversial eminent domain scheme. Roberts offered a different view. The Court’s ruling “leaves the ball in the court of the legislature,” he said, “and I think it’s reflective of what is often the case and people sometimes lose sight of, that this body [Congress] and legislative bodies in the States are protectors of people’s rights as well.””

“the survival of the Patient Protection and Affordable Care Act, also known as Obamacare.

Roberts saved the law from destruction. Why did he do it? In their piece for The Washington Post, Vermeule and Mehta cite the Obamacare case as “an early, important example” of Roberts’ “dismaying trend of tactical decisions.” He upheld President Barack Obama’s signature law, in their view, in order to save the Court from scorching liberal criticism.

But Vermeule and Mehta’s take misses what actually happened in Roberts’ Obamacare ruling. Not only did Roberts’ borrow a page from the Holmes/Bork playbook, but he specifically invoked one of Holmes’ most notable statements about the proper role of the courts. “If my fellow citizens want to go to Hell I will help them,” Holmes wrote in 1920. “It’s my job.” Here is how Roberts put it in 2012: “It is not our job to protect the people from the consequences of their political choices.”

Whether or not you agree with the chief justice’s embrace of judicial deference, it would be a mistake to downplay this important facet of his thinking.”

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