Libertarian legal thinker Damon Root has a very strange reaction to Chief Justice Roberts’s opinion in King v. Burwell: He sees it as a great example of conservative legal reasoning, and therefore decries it. He believes such reasoning places too high a value on deference to legislation. He quotes me, for example, approvingly saying that judicial restraint “is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments.” Roberts, Root claims, followed this approach in King v. Burwell and the result was “judicial abdication.”

I don’t think Root has even a little bit of a valid point. Even if I agreed with Root and like-minded libertarians that judges should be “engaged” rather than “deferential,” I wouldn’t be monomaniacal about it: I wouldn’t try to fit every judicial decision with which I disagreed into that box. This case makes an especially poor fit.

The entire question at issue in the case was what it would mean in practice to apply the statute Congress enacted. If the statute had clearly said that subsidies flow to states that refrained from establishing exchanges, there would have been no case: Everyone would have agreed that the Court had to defer to that provision of the law (liberals because they liked the policy result, conservatives because it would have obviously been the right legal conclusion).

And if, given the statute Congress actually passed, the case had come out the other way, the Court would not have been “invalidating the actions of Congress”; it would have been holding that the executive branch had wrongfully invalidated those actions. It seems to me that Chief Justice Roberts and his colleagues in the majority, rather than deferring to the statute, rewrote it. (They didn’t even defer to the administration, as Adam White explains; they reduced the amount of deference they will give executive agencies.) That may not be the kind of “judicial engagement” that Root and like-minded libertarians want, but it is certainly not restraint. If Root believes that the Court was faithful to the statute, on the other hand, it’s not clear what his problem with the decision is.