In his Washington Post column, Michael Gerson writes this:
Even in a short time, Roberts’ decision has not worn well. What initially seemed wise now smacks of mere cleverness—less a judge’s prudence than a lawyer’s trick. To find the health care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king—hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.
Mike is right on every particular. What Chief Justice Roberts did was supremely arrogant and unwise. Whatever motivated Roberts—he would undoubtedly insist it was his high-minded concern for the legitimacy of the Court; his critics would say it was his concern for winning the favor of the New York Times—he embraced a role that simply was not his to assume.
If Roberts wants to be a political philosopher, a law professor, or a politician, he is free to pursue those vocations. But if he wants to be a Supreme Court justice, he should take those duties seriously. In mixing and matching his responsibilities—in embracing the title of one thing and acting like another—John Roberts ended up as a sophist.
To be a sophist is no crime—but neither does one belong on the Supreme Court, and certainly not as chief justice.