Justice Roberts' Constitutional Consistency

But back to health care. The six-justice majority -- that Kennedy would betray the cause is no longer enraging to conservatives -- was correct on the law. Certainly, the phrase "exchange established by the state" was, to use Roberts' term, "inartful."

Yet as Roberts convincingly demonstrated, interpreting the law to make subsidies unavailable in most states would mean that "Congress made the viability of the entire Affordable Care Act turn on the ultimate ancillary provision: a sub-sub-sub section of the Tax Code."

Rather, Roberts wrote, "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter."

This is not judicial activism, rewriting legislation from the bench. It's judicial deference with a brain.

I've been skeptical of Roberts' famous umpire analogy because it seems to reduce judging to a mechanistic enterprise: If the judge thinks hard enough, the "correct" answer will emerge. That's too simplistic. The capacious phrases of the Constitution, as the marriage case demonstrates, inevitably leave space for judgment and ideology.

But it is also true -- and this is one reason that Roberts deserves praise -- that there are times when the correct legal result is reasonably clear. It is then the judge's responsibility to follow it, no matter what his or her policy preference.

Does anyone think that John Roberts, citizen, or John Roberts, member of Congress, would vote for the Affordable Care Act? Or President Obama? Of course not. The health care ruling helps undermine -- or should -- the cynical view that all judges are mere partisans in robes, reflexively ruling for their team.

Which brings me to the final point, about how the health care ruling is good for the court and the country. Justices, and the chief justice in particular, have a duty to consider and safeguard the court's institutional role. Roberts did so in both health care rulings, protecting the court from being accused of overreaching and of inserting itself into political arguments.

They also have a responsibility to consider the practical implications of their actions. A decision invalidating subsidies on federal exchanges would have created turmoil for millions of Americans, a step the court should not take lightly.

I don't always -- actually, I don't often -- agree with the chief justice. I do respect logic and consistency.

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Ruth Marcus' email address is ruthmarcus@washpost.com.