Affordable Care Act Upheld on Roberts' Vote, Standard of Review

Today the U.S. Supreme Court reported that it upheld the Affordable Care Act's principal provisions, 5-4. More, the result was achieved only through the wholly unexpected acts of conservative Chief Justice Roberts in casting the deciding vote to uphold, and writing the majority opinion. In the process, and citing foundational constitutional law cases,  he set out a principled, wise and, yes, wholly conservative, standard of judicial review. Paraphrasing, he said it is not his job to search for reasons to overturn legislation, but rather, to find reasons to uphold the constitutionality of Congress' legislative process and its prerogatives whenever those reasons are present.

The legislative process of Congress is the process that most directly represents the will of the people. They are, after all, the people's directly elected representatives. The Supreme Court's charge is to protect the nation from its representatives only when they act or legislate in a way for which there is no consititutional support. Otherwise, where constitutional support can be found, deference is owed to the legislative process and prerogatives of the Congress. And on the key issue of the "individual mandate" to buy health insurance or pay a penalty characterized as a tax and payable to the IRS, he found sufficient constitutional support in the federal taxing power.

In the totality of his decision and work on this case, many also see a responsible attempt to restore more judicial discipline, decorum, and respect to the Supreme Court, which over the last decade or so has drifted further and further into partisan disagreement and intemperate opinions. They say that John Roberts has arrived as Chief Justice of the Supreme Court, that he has proved a principled jurist, yes, but more, has restored principled leadership to the chair of the Chief Justice. I hope that assessement is true.

Here is the authority for the standard of judicial review cited and discussed by Chief Justice Roberts in the introduction to his opinion:

The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. "Art. I, §8, cl. 18. We have long read this provision to give Congress great latitude in exercising its powers: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
McCulloch, 4 Wheat., at 421.

Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. "Proper respect for a co-ordinate branch of the government" requires that we strike down an Act of Congress only if "the lack of constitutional authority to pass [the] act in question is clearly demonstrated."

United States v. Harris, 106 U. S. 629, 635 (1883). 

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices. 

Our deference in matters of policy cannot, however, become abdication in matters of law. "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. "The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional." Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madison, supra, at 175–176.

The questions before us must be considered against the background of these basic principles.

Sounds right to me.