DURING the confirmation hearings for his nomination to be chief justice of the United States, John Roberts said, “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.” What Justice Roberts offered was a picture of judicial restraint and caution … a lot of people on both sides of the aisle were surprised if not stunned Thursday when the court issued an opinion upholding President Barack Obama’s healthcare reform — an opinion written by Justice Roberts, who provided the decisive vote in a 5-4 split. But this was just the sort of decision that might have been expected, given his view of the role of the courts.

It’s a measure of his intellectual independence that Justice Roberts’ opinion had something to infuriate everyone. On one hand, he affirmed the central argument of opponents who said … that the [constitution’s commerce] clause, which allows Congress to regulate economic activity, could not be applied to economic inactivity — such as declining to purchase medical coverage. The administration’s interpretation would have the effect of “establishing that individuals may be regulated under the commerce clause whenever enough of them are not doing something the government would have them do,” wroteJustice Roberts.

This conclusion is a ringing victory for the idea that the constitution creates a government of limited, enumerated powers….But there was another surprise in the decision: it upheld the mandate on a narrower ground, as a permissible use of Congress’ taxing authority. Mr Roberts could have taken the opposite view, since the administration had originally denied it was creating a tax. But he said that “it is well established that if a statute has two possible meanings, one of which violates the constitution, courts should adopt the meaning that does not do so.” Justice Roberts also said Congress exceeded its authority in its expansion of Medicaid. Under Mr Obama’s plan, states will have to expand coverage to anyone under the age of 65 whose income falls below 133 per cent of the federal poverty line. Those that decline would forfeit not only the new federal funds provided for the expansion, but also the Medicaid funds Washington has provided under the old system. This treatment of states, wrote Mr Roberts, “is a gun to the head….” States may opt out, and Washington may withhold only the new money.

It’s a paradoxical decision, delineating limits on federal power that must be respected while allowing a new programme that conservatives regard as intolerably ambitious. But it’s a decision rooted in a sober assessment of the constitution’s meaning — and a respect for the proper role of courts. In this case, Justice Roberts astonished his critics and infuriated many admirers. That’s because he put aside his personal preferences and used his best legal judgment to reach a conclusion…. It’s just what good judges do. — (June 29)