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.