It appears that I’ve been punished for saying that judicial activism through judicial restraint is impossible. I’m okay with Roberts working hard to find a way to uphold the law rather than strike it down 5-4. But in this case his method seems to have been to mangle the plain sense of words to get them to conform to correct constitutional interpretation. Such excessive or obvious judicial creativity—no matter what end it serves—is surely judicial activism. Pete’s question—Does Roberts really believe what he’s saying about the law’s constitutionality?—is the one that anyone can’t help but ask. He seems to have been moved too much by admiration of his own Marshallian cleverness in the service of judicial statesmanship.
Roberts could have helpfully suggested how the law could be fixed—how the mandate could be turned into a tax or the Medicare expansion become uncoercive on the states. But then the law would have to fixed and re-passed by Congress. That’s something, of course, the present wouldn’t do. So Roberts did the fixing through is twisting, which actually he, under the Constitution, is not supposed to do.