Monday, June 29, 2015

Modest John Roberts?

Andrew Koppelman

Judicial modesty, as The New York Times' Adam Liptak observed Friday, was a theme of Chief Justice John Roberts’s opinions in the same-sex marriage and Obamacare cases. In the latter, the Court’s job was to implement the purpose of the statute, not to defeat it by cramped hypertechnical interpretation. “In a democracy, the power to make the law rests with those chosen by the people,” Roberts wrote. In the former, he dissented that “judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment.”

Liptak was careful not to endorse this claim of judicial restraint, and when one considers Roberts’s opinions in context—that is, beyond the context of these two decisions—the claim is hard to take.

I elaborate in a column in the New Republic Online, here.

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