John Roberts is legislating from the bench

Matt K. Lewis Senior Contributor
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A day later, and I’m amazed by the number of conservatives arguing that Supreme Court Justice John Roberts’ ruling on ObamaCare was correct or good — or even (gasp!) — an example of “Burkean minimalism and self-control.”

Some, of course, are ecstatic that the court rejected the Commerce Clause argument, without realizing this is academic and irrelevant if government can simply coerce or mandate anything it wants, so long as it deems things explicitly labeled penalties as a “tax.”

Greg Sargent interviewed NYU law professor Barry Friedman, who summed up the decision thusly: “They can’t make you eat broccoli, but they can tax you for not eating it.”

Of course, the blow to conservatives was made worse by the fact that it was dealt by Roberts. As I noted yesterday, after enduring the Warren Court, Roe, Bork, Souter, etc., conservatives engaged in a long struggle to encourage the nomination (and confirmation!) of  conservative judges. Specifically, organizations such as the Federalist Society support and encourage judges who believe in a strict constructionist interpretation or an originalist interpretation of the constitution (as opposed to those who view it as a “living” document.)

Advocates of a conservative judicial philosophy, who have invested so much in this great and long effort, must feel incredibly frustrated today. Roberts checked off all the boxes as someone who ought to rule as an originalist (remember his “umpire” analogy?). And yet, conservatives who believe the role of judges is simply to interpret the law (not re-write it) have been dealt another blow. (One can certainly applaud Roberts for wanting to exercise “judicial restraint,” yet in doing so, he was clearly guilty of “legislating from the bench.”) It’s sad, really.

Exit question: In recent years, Republicans have clearly displayed an implicit inclination towards nominating Ivy league-educated, male, Catholic judges. Will Roberts’ decision reverse that trend?