Judicial Minimalism, the Mandate, and Mr. Roberts

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.

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