Let’s hope they’re right, but I have my doubts. Certainly, Roberts zealously guards the court’s institutional standing against accusations of overreaching. But only to a point. The Voting Rights Act offers an example. In 2009, Roberts, as with the Affordable Care Act, demonstrated his willingness to stretch the language of the statute to save it — temporarily. Four years later, he wrote the majority ruling striking down the law’s key provision.
Importantly, Roberts’s initial restraint in that case, as in his ruling upholding the Affordable Care Act, was based on constitutional considerations: the long-standing principle that the court, if possible, should avoid overturning the work of a co-equal branch of government.
In the looming case about federal subsidies, which involves statutory interpretation (actually, whether the court should accept a federal agency’s interpretation of a statute), Roberts may be inclined to a less deferential stance.
Indeed, the two D.C. Circuit judges who invalidated the subsidies — Thomas Griffith and Raymond Randolph — cast their decision in terms of the “legislative supremacy” of Congress and the need for judges to respect statutory language, not to
Last time around, Roberts was protecting the court from appearing to overstep its constitutional muscle. This case is different, and so, I fear, could be the outcome.
Actually, last time around, Roberts “substituted his own surmise about what Congress intended,” in defiance of both the text and the arguments advanced by government lawyers.
The question is whether he will do the same thing again.
I don’t see any particular reason to be sanguinary. Any Chief Justice who is willing to decide cases not on the law, but on the reputation of the Supreme Court, isn’t fit to be a judge at all, let alone the Chief Justice.