Chief Justice Roberts and the Separation of Powers
In our surprise at learning "conservative" Chief Justice Roberts had joined the "liberal" wing of the court to uphold the constitutionality of the Affordable Care Act, we allow today's ideological schism in politics to eclipse what is really at stake in the historic 5-4 decision: the separation of powers through which the Founders forged a constitution suspicious of power and anxious to hem it in with checks and balances. Alert to what in 18th century Europe were abuses of power by government, the founders created a divided framework for the public sector intended to check any one branch of government --executive, legislative or judicial -- from becoming too dominant.
Although ideology and politics play an undeniable role in its decisions, the Supreme Court must always wrestle with its role under the separation of powers, for which it carries a special burden of responsibility. Sometimes it intervenes to check what it perceives as the overreaching power of the legislature or the executive, as it did in the early 1930s in opposing New Deal legislation. In such instances it uses its power to check the power of the other branches. It is "activist" in the name of restraining the other branches. But at times it steps back and effectively leashes its own power, refusing to overturn legislation with which it may disagree politically, but which can be shown to be constitutionally grounded. At such times it honors limited government by exercising judicial restraint, checking itself. Either way, it operates in the setting of the separation of powers, using its power or refraining from using it, to assure a judicious balance.
Justice Roberts, who has made clear he will not "abdicate" judicial engagement in the name of restraint when the Presidency or Legislature overreach, nonetheless -- in examining President Obama's ACA -- opted for restraint, opted to allow the American people and the democratic process to operate unfettered by the court: "it is not our role to forbid," Roberts wrote, or "to pass upon the wisdom or fairness" of legislation, as long as it meets the standard of constitutionality.
Chief Justice Roberts promised this kind of balanced jurisprudence when being vetted for the Court, but has not always made good on the promise in the dozens of 5-4 cases in which he has consistently sided with the "conservatives." But in the second most important decision to come before his Court (I count Citizens United the most important), he showed that his commitment to the independence and integrity of the court, and to the separation of powers, was real. That so very much was at stake politically made his position the more remarkable -- although it was perhaps precisely because the case was so political that he chose to use it to make clear his commitment to judicial restraint in the name of a true balance of powers.