I read with interest the opinion piece by Michael Gerson, "John Roberts' alternate universe," published in the July 4 edition of The News-Journal. I suspect that Mr. Gerson misunderstands the function and purpose of appellate courts, and I disagree with his conclusion that Justice Roberts was "striking a grand political compromise" in authoring the majority opinion upholding the constitutionality of the Affordable Health Care Act. Mr. Gerson apparently came to this conclusion because the chief justice relied on the taxing power of Congress to sustain the act.
Let's begin with a fundamental precept of appellate law: an appeals court must uphold the constitutionality of a legislative action if it can find any legal basis for doing so. It may declare an act unconstitutional only if there is no basis to sustain the act. A judicial conservative is a judge who follows this maxim. A judicial activist, on the other hand, is a judge who strikes down or upholds an act based on his or her own political philosophy. Although the term is frequently ballyhooed when an unpopular decision is rendered, a judicial activist is not a judge who rules in a manner contrary to either my own personal philosophy, or my personal opinion of the wisdom or folly of a statute.
Justice Roberts is a political conservative. I don't think anyone would doubt his credentials in this regard. But he is also a judicial conservative. That he has a personal dislike of the Affordable Health Care Act is quite apparent in the language that he used in his opinion. Given his posture as a judicial conservative, however, he found himself in a position where he either had to uphold the statute, or betray his fundamental function as an appellate judge. Accordingly, when he found that using the taxing power was a "fairly possible" basis to support the statute, he was compelled to vote in favor of upholding the act.
Justice Roberts has been roundly hailed in some quarters and vilified in others for his stance in this case. I think we ought to recognize him instead as a man of principle who, when called upon to do so, did the right thing despite his distaste for the action.
Monaco recently retired after having served as a judge for nearly 15 years. For the past nine years, he served as an appellate judge on the Florida 5th District Court of Appeal, and was that court's chief judge from 2009 to 2011.