John Roberts is discussed across several episodes of The Bob Zadek Show as the Supreme Court justice most closely identified with judicial deference — the doctrine that unelected judges should leave contested decisions to the elected branches. Guests disagree about whether his record bears that identification out.
Judicial deference and restraint
Damon Root described judicial activism as a phrase typically used as an insult, wielded by conservatives against liberals who invented a right to privacy and rights to abortion, and by liberals against conservatives who read the Second Amendment too broadly. He placed both Robert Bork and John Roberts as good examples of the opposing view, judicial deference and restraint, under which courts should be hands-off of democratically enacted laws and should not interfere with the elected branches of government. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Josh Blackman defined deference in constitutional law terms: the elected branches are accountable and can be thrown out of office, while Supreme Court justices are not elected and serve for life, so the preference is that the elected branches make tough decisions rather than the unelected branch. He said this model was very popular during the New Deal, and that in the 1950s and 1960s the court began creating exceptions to it, a move away from deference that paved the way for the court to assert broad power over social legislation. Eight-Dimensional Chess (2020)
Bob Zadek framed the same idea through Roberts’s confirmation-hearing image of calling balls and strikes, asking Blackman whether “screwed up” meant enacting legislation that violates the Constitution rather than merely making a bad policy decision. Blackman agreed that unless there is a clear violation of the Constitution the court will simply step out, though he added that the Constitution does not always give clear guidance and that he is not a fan of deference in all contexts. Eight-Dimensional Chess (2020)
The 2012 healthcare ruling
Root said that in 2012 Roberts cast the deciding vote to uphold the healthcare law, the Obamacare law, and in doing so said it was an act of judicial restraint, quoting Roberts: “It’s not our job to protect the people from the consequences of their political choices.” Root said it was clear Roberts did not necessarily like the healthcare law but felt his role was to defer to Congress and the president, and that this surprised many people because a conservative Chief Justice appointed by George W. Bush, with Republican Party associations, had saved President Obama’s key law. Root argued the reason was that Roberts takes judicial deference very seriously and is willing to apply it even where he may not like the outcome, while most conservatives and libertarians think he got it wrong. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Bob Zadek said Roberts famously stated in the NFIB v. Sebelius case that it is not his job to rethink legislation, and that if you do not like what your legislators are doing the political process lets you vote them out — showing, in one sentence, profound judicial deference despite Roberts’s own doubts about whether the statute was constitutional. Ilya Shapiro on the Supreme Court in the Balance (2016)
David Kaplan said Roberts showed in the first Obamacare ruling in 2012 that he knew what judicial restraint correctly applied looked like. Demystifying the Supreme Court (2019)
Kaplan’s counterargument
Kaplan, describing himself as a political liberal, said he was thrilled when the Court ruled the correct way in his youth but that with conservatives clearly in control it is not so easy to take that position, and that he is bemused at seeing conservatives who spent their careers attacking the liberal Supreme Court for intervening now rush to support its intervention in areas like the Affordable Care Act. He said Obamacare clearly is constitutional and that those who argue it is not barely present plausible arguments. Demystifying the Supreme Court (2019)
Kaplan also said Roberts has not been restrained in his votes in any number of areas — striking down campaign finance regulation and gutting the Voting Rights Act of 1965 — and warned, “He is a true conservative; don’t mistake him for being a middle-of-the-roader.” He described Roberts as now constituting what passes for the middle of the Court, the swing justice after Justice Kennedy retired, and said he thinks this Chief Justice more than the other conservatives understands that the Court’s prestige and therein its power is more important than any particular vote in a particular case, and will put the needs of the Court above his own particular interests. Demystifying the Supreme Court (2019)
The umpire image
In a 2010 episode on capitalism and failure, Bob Zadek invoked Roberts while arguing about the proper scope of federal power, asking whether the federal government should be in the business of spending on good things in the abstract or should instead be, as he put it Roberts said, just the umpire making sure people play by the rules but not rigging the game. A Libertarian Plan (2010)
Across episodes
The topic recurs from 2014 to 2019, and what changes is the valence each guest assigns to the same trait. Root in 2014 and Zadek in 2016 treat Roberts’s deference as sincere and consistently applied, with Root noting that most conservatives and libertarians disagree with the 2012 outcome; Kaplan in 2019 accepts that Roberts knows what correctly applied restraint looks like but argues his restraint is selective, citing campaign finance and the Voting Rights Act of 1965, and recasts him as a true conservative protecting the Court’s prestige. Blackman in 2020 supplies the doctrinal definition of deference that the earlier episodes assume, and adds his own reservation that he is not a fan of deference in all contexts. The excerpts show no resolution between these readings.
What the sources do not cover
The excerpts do not state Roberts’s date or place of birth, his earlier career, the name of the healthcare statute beyond the terms used by the speakers, or what any cited case held beyond the descriptions given. They do not give the outcome of the Garland nomination beyond the speakers’ expectations at the time, nor Roberts’s votes in cases other than those named. Nothing in the excerpts describes his confirmation hearings beyond Zadek’s reference to the balls-and-strikes image.