Roberts is no par­ti­san ju­rist

The Washington Post Sunday - - SUNDAY OPINION - ruth­mar­cus@wash­post.com

Chief Jus­tice John G. Roberts Jr. knew a tor­rent of con­ser­va­tive in­vec­tive was headed his way, so per­haps praise from a left-of-cen­ter colum­nist is the last thing he needs. Sorry, chief, here goes. Roberts saved the Af­ford­able Care Act, a sec­ond time, for the man who voted against con­firm­ing him. It was the right de­ci­sion, a wise one, for the law, the court and the coun­try.

For this, pre­dictably, Roberts has been branded David Souter-lite. “He stands re­vealed as a most po­lit­i­cal Jus­tice,” thun­dered the Wall Street Jour­nal ed­i­to­rial board, ac­cus­ing Roberts of “volunteering as Nancy Pelosi’s copy editor.”

That was among the milder cri­tiques. “It’s time we ad­mit­ted that our na­tional ‘ um­pire’ is now play­ing for one of the teams,” said Car­rie Sev­erino of the Ju­di­cial Cri­sis Net­work.

Deep breath, folks. Roberts is no lib­eral squish. He’s not even a cen­trist squish. He’s a deeply con­ser­va­tive ju­rist, as wit­nessed by his im­pas­sioned dis­sent in the court’s same-sex mar­riage rul­ing the day af­ter his sup­posed treach­ery on health care.

“Whether same-sex mar­riage is a good idea should be of no con­cern to us,” Roberts wrote. “Un­der the Con­sti­tu­tion, judges have power to say what the law is, not what it should be.”

I hap­pen to agree with Roberts on health care and dis­agree on mar­riage, but his po­si­tion in both is in­tel­lec­tu­ally con­sis­tent in its conception of the ju­di­cial role. It be­hooves even those of us who be­lieve that the court was cor­rect in ex­tend­ing mar­riage rights to same-sex cou­ples to think through his ar­gu­ments about short-cir­cuit­ing the demo­cratic process and in­vest­ing judges with pol­i­cy­mak­ing pow­ers.

And, by the way, let’s not get car­ried away by the re­mark­able string of lib­eral vic­to­ries in the court’s fi­nal week, in­clud­ing an ex­pan­sive in­ter­pre­ta­tion of the hous­ing dis­crim­i­na­tion lawa­long with the health care and mar­riage cases.

This is not a lib­eral court. It’s a con­ser­va­tive court that oc­ca­sion­ally, thanks to Jus­tice An­thony M. Kennedy, swings in the op­po­site di­rec­tion. In the run-up to the 2016 elec­tion, com­pla­cency about the court would be foolish. The next pres­i­dent will shape the coun­try’s con­sti­tu­tional fu­ture.

But back to health care. The six-jus­tice ma­jor­ity — that Kennedy would be­tray the cause is no longer en­rag­ing to con­ser­va­tives — was cor­rect on the law. Cer­tainly, the phrase “ex­change es­tab­lished by the State” was, to use Roberts’s term, “inart­ful.”

Yet as Roberts con­vinc­ingly demon­strated, in­ter­pret­ing the law to make sub­si­dies un­avail­able in most states would mean that “Congress made the vi­a­bil­ity of the en­tire Af­ford­able Care Act turn on the ul­ti­mate an­cil­lary pro­vi­sion: a sub-sub-sub sec­tion of the Tax Code.”

Rather, Roberts wrote, “Congress passed the Af­ford­able Care Act to im­prove health in­sur­ance mar­kets, not to de­stroy them. If at all pos­si­ble, we must in­ter­pret the Act in a way that is con­sis­tent with the for­mer, and avoids the lat­ter.”

This is not ju­di­cial ac­tivism, rewrit­ing leg­is­la­tion from the bench. It’s ju­di­cial def­er­ence with a brain.

I’ve been skep­ti­cal of Roberts’s fa­mous um­pire anal­ogy be­cause it seems to re­duce judg­ing to a mech­a­nis­tic en­ter­prise: If the judge thinks hard enough, the “cor­rect” an­swer will emerge. That’s too sim­plis­tic. The ca­pa­cious phrases of the Con­sti­tu­tion, as the mar­riage case demon­strates, in­evitably leave space for judg­ment and ide­ol­ogy.

But it is also true — and this is one rea­son that Roberts de­serves praise — that there are times when the cor­rect le­gal re­sult is rea­son­ably clear. It is then the judge’s re­spon­si­bil­ity to fol­low it, no mat­ter what his or her pol­icy pref­er­ence.

Does any­one think that John Roberts, citizen, or John Roberts, mem­ber of Congress, would vote for the Af­ford­able Care Act? Or Pres­i­dent Obama? Of course not. The healthcare rul­ing helps — or should help — un­der­mine the cyn­i­cal view that all judges are mere par­ti­sans in robes, re­flex­ively rul­ing for their team.

Which brings me to the fi­nal point, about how the health-care rul­ing is good for the court and the coun­try. Jus­tices, and the chief jus­tice in par­tic­u­lar, have a duty to con­sider and safe­guard the court’s in­sti­tu­tional role. Roberts did so in both healthcare rul­ings, pro­tect­ing the court from be­ing ac­cused of over­reach­ing and of in­sert­ing it­self into po­lit­i­cal ar­gu­ments.

They also have a re­spon­si­bil­ity to con­sider the prac­ti­cal im­pli­ca­tions of their ac­tions. A de­ci­sion in­val­i­dat­ing sub­si­dies on fed­eral ex­changes would have cre­ated tur­moil for mil­lions of Amer­i­cans, a step the court should not take lightly.

I don’t al­ways — ac­tu­ally, I don’t of­ten — agree with the chief jus­tice. I do re­spect logic and con­sis­tency.

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