This note argues that true judicial restraint is a fictional impossibility. Any practice of judicial restraint is at the very same moment an exercise of judicial activism because a judge cannot approach the law from a truly objective, mechanical position. Every judicial opinion is influenced not only by the political and moral vantage point of the judge, but also the judge’s policy and societal concerns. This thesis is illustrated by a case study of National Federation of Independent Business v. Sebelius, and, specifically, Chief Justice Roberts’s opinion regarding the individual mandate and the Medicaid provision of the Affordable Care Act. Chief Justice Roberts’s opinion demonstrates how even with the best intentions of deference, the judiciary is inevitably influenced by partisanship, personal experience, the current temper of the court, the perceived needs and desires of the majority, and any number of other factors that make it impossible to have a truly objective, deferential judiciary.
Blankenship, Katherine H.
"The Great Tactician: The Chief Justice, Obamacare, and Walking the Tightrope of Partisan Politics,"
Belmont Law Review: Vol. 2:
1, Article 6.
Available at: https://repository.belmont.edu/lawreview/vol2/iss1/6