Abstract

http://ssrn.com/abstract=2169933
 


 



Judicial Minimalism, the Mandate, and Mr. Roberts


Jonathan H. Adler


Case Western Reserve University School of Law; PERC - Property and Environment Research Center

October 31, 2012

THE HEALTH CARE CASE: THE SUPREME COURT’S DECISION AND ITS IMPLICATIONS (Nathaniel Persily, Gillian E. Metzger, & Trevor W. Morrison eds., 2013)
Case Legal Studies Research Paper No. 2012-35

Abstract:     
Chief Justice John Roberts’s decision in NFIB v. Sebelius holding the individual mandate exceeded the scope of Congress’s power to regulate commerce but could nonetheless survive as a constitutional exercise of the taxing power caught most commentators by surprise. Post-decision reports that Roberts changed his vote at some point during deliberations fueled speculation his opinion was politically motivated. Ignored in most post-decision commentary is the extent to which Chief Justice Roberts’s NFIB opinion is consistent with his own stated judicial philosophy and his record on the bench. The key elements of his opinion, including his Commerce Clause analysis and adoption of a “saving construction” to preserve the statute’s constitutionality are of a piece with his prior opinions as a Justice and Circuit Court judge and his accounts of the proper judicial role. This decision provides further confirmation that the Chief Justice is, above all else, a conservative judicial minimalist in his approach to deciding cases.

Number of Pages in PDF File: 25

Keywords: NFIB v. Sebelius, Chief Justice John Roberts, Commerce Clause, individual mandate, judicial minimalism, Affordable Care Act, PPACA, saving construction, constitutional law

JEL Classification: K19

Accepted Paper Series





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Date posted: November 2, 2012  

Suggested Citation

Adler, Jonathan H., Judicial Minimalism, the Mandate, and Mr. Roberts (October 31, 2012). THE HEALTH CARE CASE: THE SUPREME COURT’S DECISION AND ITS IMPLICATIONS (Nathaniel Persily, Gillian E. Metzger, & Trevor W. Morrison eds., 2013) ; Case Legal Studies Research Paper No. 2012-35. Available at SSRN: http://ssrn.com/abstract=2169933

Contact Information

Jonathan H. Adler (Contact Author)
Case Western Reserve University School of Law ( email )
11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-2535 (Phone)
216-368-2086 (Fax)
HOME PAGE: http://www.jhadler.net
PERC - Property and Environment Research Center
2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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