One need not agree with what Roberts did to find this line of criticism vastly overblown. Moreover, to allow the criticism to go unchallenged is to allow the undermining of the conservative movement's credibility in calling for a non-political judiciary. [...]

What, then, of Roberts's vote and opinion in the health-care case? While one need not agree with it, and while the conservative disappointment over it is certainly understandable, it is not the sorry performance that Roberts's most rabid critics pretend. That is, despite the rage of the conservative commentariat, Roberts's argument is one that could have been made by a conservative jurist seeking to adhere to a properly deferential posture toward the elected branches of government.

Considerable ire has been directed at Roberts not only because of what he did, but because of the way he did it. He concluded, to the approval of conservatives, that the individual mandate was unconstitutionally in excess of the commerce power, but then turned around and argued that it could be upheld under the taxing power of the federal government. Thus, his critics complain, he authorized the provision under the auspices of one power when the government had justified it principally under the auspices of another power. But what of that? Are conservatives--who claim to favor judicial restraint and deference to the elected branches out of respect for democratic self-government--to commit themselves to the position that the Court should strike down laws that are within the government's authority merely because the government invoked the wrong grant of power when it wrote or defended the law? Perhaps this would be justifiable in some cases, but declining to do so is hardly outside the bounds of judicial restraint traditionally understood.

In The Civil Rights Cases (1883), the Supreme Court struck down some provisions of the Civil Rights Act of 1875. The provisions in question prohibited racial discrimination in "public accommodations"--theaters, inns, and the like. The Court found the law unconstitutional because it had been passed pursuant to Congress's authority to enforce the terms of the Fourteenth Amendment, but, the Court noted, the Fourteenth Amendment only prohibits racial discrimination carried on by states, not private businesses. In his dissenting opinion, John Marshall Harlan pointed out that the Court might have upheld at least those parts of the act that regulated interstate commerce. He asked: "Has it ever been held that the judiciary should overturn a statute because the legislative department did not accurately recite therein the particular provision of the constitution authorizing its enactment?" In acting much like Harlan, Roberts may have erred, but he surely was not on totally indefensible ground.  Indeed, as Joel Alicea just noted in Public Discourse, until recently many conservatives would have taken Harlan as a model of commendable judicial restraint.