John Roberts Obamacare Decision: A Libertarian Defense of the Chief Justice


Although the Supreme Court’s ruling yesterday on the Affordable Care Act settled the question of its constitutionality, a great many conservatives and libertarians today continue to insist otherwise.

Their villain is Chief Justice John Roberts, the deciding vote in yesterday’s decision and, now, persona non grata among his former conservative friends.

Never mind that Roberts wrote the Commerce Clause prohibits regulation of economic inactivity. In their eyes, that he found any constitutional basis for the health insurance mandate makes him either a traitor or mentally incompetent.

But “conservative” doesn’t mean conservatives always get what they want. In fact, it means they often don’t.

Justice Roberts today remains a conservative judge, perhaps the most conservative on the court. He respects the limits of his power and the authority of his institution. He voted yesterday to affirm the ability of the Congress to be the first among three equal branches of the federal government because that is the design of the American republic under the Constitution. 

This does not make Roberts’s reasoning flawless. His rewriting of the legislation so it imposes a tax is a big stretch for someone so opposed ideologically to legislating from the bench.

It means Roberts takes a broadly conservative view of himself, the judiciary, the Constitution, and the law. It means he sees their limits.

Constitutional jurisprudence is like building a never-ending fence to bound the instincts of the public and its representatives in government. Some days the fence tightens and other days it lets out a bit. It’s a process of justifying what we want in a context of what we think is best.

Some think reading the Constitution strictly is best while others view it as a “living document.” Roberts said famously being a judge is most like being an umpire, calling balls and strikes. But, try as he might, neither he nor any other person can read the constitution objectively. That’s why judicial decisions are called opinions and not facts. Every judge, just like every person, feels their way through new circumstances based on their individual knowledge and experience.

Indeed, justice is blind because we’re all grasping through the dark together, figuring things out along the way.

The Affordable Care Act is deeply flawed as a piece of public policy. It should be repealed, although that’s unlikely. It will probably do more harm than good, putting more upward pressure on the prices of insurance premiums and health care generally. It adds considerable amounts of additional debt to the national tab and empowers great numbers of new bureaucrats to interfere in peaceful people’s lives. It won’t achieve what the president promises, instead enriching private health insurance companies at everyone’s expense.

But it’s constitutional, at least for now. And John Roberts is still a conservative.