And in 2011 he upheld the constitutionality of the Obama administration’s Affordable Care Act, which at the time required people to be insured. He wrote that individuals’ decisions to remain uninsured, in the aggregate, have a substantial effect on interstate commerce and were therefore fair game for federal regulation.
The Supreme Court went on to uphold the act on other grounds (and Congress later removed the insurance requirement), but Judge Silberman was applauded in some circles for his consistency in exercising judicial restraint, even in assessing the constitutionality of an emblematic Democratic initiative.
He was not unwilling to challenge judicial precedents, however.
In 2021, he delivered a scathing dissent in a libel case, urging the Supreme Court to overturn its 1964 ruling in New York Times v. Sullivan. That precedent said that to sustain a claim of libel against a public figure, a plaintiff had to prove that a published statement was known to have been false or was published with reckless disregard for whether it was true.
Arguing for a ruling that would make it easier for public figures to win libel suits, Judge Silberman said that The Times and The Washington Post had become “virtually Democratic Party broadsheets,” that “the news section of The Wall Street Journal leans in the same direction,” that nearly all TV network and cable outlets are “a Democratic Party trumpet,” and that big tech companies censor conservatives.
“Democratic Party ideological control” of the media, he warned, could portend an “authoritarian or dictatorial regime.” His opinion on lowering the bar for libel suits, if not his same reasoning, was later echoed by the Supreme Court justices Neil M. Gorsuch and Clarence Thomas.
Though a conservative paragon, Judge Silberman defied pigeonholing.
As solicitor in the Nixon administration’s Labor Department, he developed timetables for affirmative action, including numerical quotas that he later said he had initially hoped to avoid.
As under secretary of labor, he threatened to quit unless President Richard M. Nixon overruled a White House aide who sought to prevent the nomination of a Black labor expert as the Labor Department’s director for the New York region.