O'Reilly right that Robert's opinion was an example of judicial restraint; wrong that we should forgive it for that reason


This week Fox News personality Bill O’Reilly rightly pointed out that Justice Robert’s opinion upholding the individual mandate under the taxing power could be construed as a conservative opinion.  However, Bill went on to imply that Justice Robert’s opinion should be forgiven as merely a mistaken application of a strain of conservative judicial philosophy that is otherwise correct.  That’s where Bill got it wrong.

As Bill explained, Justice Robert’s jurisprudence is all about avoiding judicial activism (i.e. “legislating from the bench” or unnecessarily striking down laws). This notion of “judicial restraint” counsels judges to avoid striking down congressional actions whenever possible. Accordingly, Justice Roberts, a  proponent of this restrained view of the role of the Court, may have felt that these principles compelled him to adopt his strained reading of the taxing power rather than strike down the individual mandate as unconstitutional.

Yet what O’Reilly characterized as a mistaken application of an otherwise sound judicial philosophy is, in truth, a perfect example of what is wrong with that philosophy in general. Since Roe v. Wade   many judges have searched for a judicial philosophy that would allow them to avoid similar decisions in the future. What they found was “judicial restraint.” Yet, judicial restraint is far from conservative in its origins. In fact, it is the very same philosophy that progressive judges had long used to uphold FDR’s over expansive New Deal programs against constitutional challenges in the 1930’s. It should come as no surprise that a judicial philosophy created to uphold over-expansive, progressive, and unconstitutional programs, would now be used to uphold Obamacare.

Under the doctrine of judicial restraint, a judge must presume that all government action is constitutional.  A restrained judge will not require that the government justify even the most novel and expansive  government program before upholding it. Instead, the burden falls on the individual to prove that he ought to be free from that new government action– a much more difficult task. Indeed, under the doctrines of judicial restraint, a judge seeks out arguments to uphold a law even if the government itself has neglected to make those arguments, or has expressly disclaimed them. Under judicial restraint, judges must defer to the legislature on questions of policy.

For a conservative judge, who beleives in a constitutionally limited government, this can create  tension: if she strikes down a popularly enacted law, she risks being labeled a judicial activist – which amounts to being labeled a heretic in some circles. Yet, if she does not strike down over-expansive unconstitutional laws, government continues to grow, and the Constitution becomes increasingly irrelevant.

Such is the conundrum Chief Justice Roberts found himself in: Strike down the law and be labeled an activist, or uphold the law and remain true to his judicial restraint philosophy. As we now know, he chose the latter. Only judicial restraint could justify an opinion that defines the individual mandate as a tax, even though the congressional record reflects that it was intentionally not defined as a tax, it was sold to the people as not being a tax, and , most importantly, it had to be defined as a penalty for the Court to have jurisdiction in the first place.

So yes, Justice Roberts opinion was restrained, and, according to some, conservative. But that is precisely why it was wrong! Conservatives who value the Constitution would do well to distance themselves from a judicial philosophy that requires such deference to government.