I have told people, when pressed, that I prefer to be known as a modest judge. And, to me, that means some of the things that you talked about in those other labels. It means an appreciation that the role of the judge is limited; the judge is to decide the cases before them; they're not to legislate; they're not to execute the laws.... [Y]es, there will be times when either the executive branch or the legislative branch exceeds the limits of their powers under the Constitution or transgresses one of provisions of the Bill of Rights. Then it is emphatically the obligation of the courts to step up and say what the Constitution provides, and to strike down either unconstitutional legislation or unconstitutional executive action. But the court has to appreciate that the reason they have that authority is because they are interpreting the law. They are not making policy. And to the extent they go beyond their confined limits and make policy or execute the law, they lose their legitimacy. And I think that calls into question the authority they will need when it's necessary to act in the face of unconstitutional action.
Back in the mid-to-late 1990s, challenging the landmark /Miranda/ decision was much in vogue in conservative legal circles, based on an obscure Congressional statute passed two years thereafter which ostensibly overturned it, but which Justice Departments both Republican and Democratic had refused to enforce. The case was finally teed up to the Supreme Court in the 1999-2000 term, and it seemed clear that Chief Justice William Rehnquist was set to build off the success of the /Lopez/ decision and roll back this key Warren Court precedent. Except, it didn't happen, and the chief wrote this himself:
Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. While “ ‘stare decisis is not an inexorable command,’” particularly when we are interpreting the Constitution, “even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some ‘special justification.’ ” We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. See Mitchell v. United States, 526 U.S. 314, 331—332 (1999) (Scalia, J., dissenting) (stating that the fact that a rule has found “ ‘wide acceptance in the legal culture’” is “adequate reason not to overrule” it). While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, we do not believe that this has happened to the Miranda decision.
Overturning /Miranda/ was a conservative dream, but was it worth the cost of the Court's legitimacy? Chief Justice Rehnquist didn't think so. As Jeffrey Rosen wrote late in Rehnquist's life:
[L]iberals have never understood how significantly and frequently Rehnquist departed from doctrinaire conservative ideology, and conservatives have failed to grasp that his tactical flexibility was more effective than the rigid purity of Scalia and Thomas. In truth, Rehnquist carefully staked out a limbo between the right and the left and showed that it was a very good place to be. With exceptional efficiency and amiability he led a Court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country... As for judicial temperament, he was far more devoted to preserving tradition and majority rule than the generation of fire-breathing conservatives who followed him.
John Roberts clerked for the Justice Rehnquist in the 1980-81 term, and today's ACA ruling is not the first that seems to have been very much guided by Rehnquist's influence on him. (Continue reading below the fold ...)
Today is not the first time that the chief justice has disappointed conservatives in key cases. Three years ago, against all expectations to the contrary, he steered an 8-1 majority to uphold the constitutionality of Section 5 of the Voting Rights Act of 1965 in a case known as NAMUDNO, in which he explained at length the judicial role:
In assessing those questions, we are keenly mindful of our institutional role. We fully appreciate that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty that this Court is called on to perform.” “The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States.” The Fifteenth Amendment empowers “Congress,” not the Court, to determine in the first instance what legislation is needed to enforce it. Congress amassed a sizable record in support of its decision to extend the preclearance requirements, a record the District Court determined “document[ed] contemporary racial discrimination in covered states.” The District Court also found that the record “demonstrat[ed] that section 5 prevents discriminatory voting changes” by “quietly but effectively deterring discriminatory changes.” We will not shrink from our duty “as the bulwar[k] of a limited constitution against legislative encroachments,” The Federalist No. 78, p. 526 (J. Cooke ed. 1961) (A. Hamilton), but “[i]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.”
And as many noted, his dissent in Monday's decision ending mandatory life-without-parole sentences for minors struck this same tone:
[T]oday’s decision invalidates the laws of dozens of legislatures and Congress. This Court is not easily led to such a result. See, e.g., United States v. Harris, 106 U. S. 629, 635 (1883) (courts must presume an Act of Congress is constitutional “unless the lack of constitutional authority . . . is clearly demonstrated”). Because the Court does not rely on the Eighth Amendment’s text or objective evidence of society’s standards, its analysis of precedent alone must bear the “heavy burden [that] rests on those who would attack the judgment of the representatives of the people.”
And so it was today:
[I]t is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” Parsons v. Bedford, 3 Pet. 433, 448–449 (1830). Justice Holmes made the same point a century later: “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion).
We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.
During the decades still to come in his tenure as chief justice of the United States, John Roberts will no doubt vex us at time, and interpret the Constitution and statutes in ways which we would not prefer. He's certainly done plenty of that already. But today, with the Court's legitimacy on one side and the pressure of ideologues on the other, he followed his mentor's modest example and chose the former, not the latter, and vindicated the views of those of us back in 2005 who believed he would not prove to be another Scalia or Thomas. Thank goodness.