I offer a couple of questions on the matter of judicial deference of which Chief Justice John Roberts reminded us with his ruling last Thursday on the matter of NFIB v Sebelius, the Obamacare ruling.  To be sure, this is far from the first time judicial deference has been applied; it’s an old and hoary doctrine.  But still, the questions arise.

How does deference work for a judicial system in its deliberations of the application of a law, including the supreme Law of the Land?  Deference would seem to be an a priori bias in favor of the government by a court that is supposed to be impartial and objective.  Is this an example of judicial empathy?

How does deference work for a judicial branch of the Federal government that’s supposed to be the equal of each of the other two branches?

In the quest for a “fairly possible” reading of constitutionality, as opposed to the actual text of the law, Justice Joseph Story said

No court ought, unless the terms of an act rendered it una­voidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.

Justice Oliver Wendell Holmes echoed the point:

[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.

These remarks are certainly consistent with the doctrine of deference, but quite apart from that, how are they consistent with objectivity and impartiality?  Particularly in adjudicating an overt question of legitimacy, of constitutionality, that legitimacy would seem be best found strictly in the text of the law itself, and failing that, in the legislative history of the law’s development, certainly not at the end of a long and convoluted search for meaning.

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