Will Obamacare Destroy John Roberts’ Noble Desire for a Nonpartisan Supreme Court?

(John Jay/For The Washington Post)


by Robert Barnes

The first time the Affordable Care Act came before the Supreme Court, its constitutional foundation under attack, John G. Roberts Jr. was its unlikely savior. In a spectacular display of spot-welding, the chief justice joined fellow conservatives on some points and brought liberals on board for others. Roberts was the only member of the court to endorse the entire jerry-rigged thing, and even he made sure to distance himself from the substance of the law. (“It is,” he wrote, “not our job to protect the people from the consequences of their political choices.”) Still, his efforts rescued President Obama’s signature achievement on grounds that many had dismissed as an afterthought.

As long as Justice Anthony M. Kennedy is on the court, he will most often be the decider when the justices split along their familiar ideological fault lines. But, slowly and quietly, Roberts is the one trying to build its legacy. He sees it as somehow exempt from the partisan fugue that long ago enveloped Washington. Justice Stephen G. Breyer has worried that the public might see him and his colleagues as “nine junior-varsity politicians”; public approval of the Supreme Court is falling. But while all of the justices bristle at the notion of a political court, the eponymous head of the Roberts court has the most to lose. After all, its decisions cannot be respected if the court is not respected. “It is a very serious threat to the independence and integrity of the courts to politicize them,” Roberts said at his 2005 confirmation hearings.

Roberts, 60, jokes about the “odd historical quirk” that gives the chief justice only one vote. But he has learned to use the tools that come with the job: He shapes the discussion at conference; he writes the court’s opinion, or assigns it strategically, when he is in the majority; he’s happy to settle for nonthreatening, incremental changes that may bloom later into something more. And last term, what Roberts has described as the chief justice’s “particular obligation to try to achieve consensus” paid off. The share of unanimous decisions soared to 66 percent, a level not seen since the 1940s. The share of 5-to-4 decisions, high during Roberts’s tenure compared with those of other chief justices, fell to 14 percent, the lowest since he joined the court.

And then here comes Obamacare II. In King v. Burwell , to be argued Wednesday, plaintiffs say the text of the law must be interpreted in a way that would neuter it, canceling health insurance subsidies for about 7.5 million Americans in at least 34 states. Can Roberts’s portrayal of the Supreme Court as above politics survive another round with the most partisan issue of the decade?

Roberts, of course, has not ceased to be a conservative. Before Obamacare — or since — it’s hard to think of a case in which he has not voted the way conservative activists had hoped when they recommended him to President George W. Bush. The Roberts court has been described as the most pro-business in history. Its liberals complain that consumers are on a losing streak and that the court has imposed new roadblocks for those trying to prove discrimination.

And when the issue is important to the chief justice, or when there seems to be no chance for compromise, he has been decisive. In a suite of cases, for instance, the court has systematically dismantled campaign finance restrictions, calling them hostile to free speech rights — Citizens United v. Federal Election Commission being the most famous of several 5-to-4 votes. Roberts wrote the majority opinion in the most recent, which featured the Republican National Committee as a plaintiff.

He has also forcefully opposed the government’s use of racial classifications, and he wrote to strike down a key provision of the Voting Rights Act. Roberts, unlike Kennedy or even Justice Antonin Scalia, had never been the lone conservative to join the court’s liberals to make a majority in a major case — until the Affordable Care Act.

Yet chief justices tend not to see the court as a vehicle for advancing their unadulterated ideas. A transformation came over Roberts’s predecessor and mentor, William H. Rehnquist, after becoming chief. As an associate justice, Rehnquist wrote so many solo dissents that his clerks awarded him a Lone Ranger doll. But like chief justices before him, in his new role he felt a responsibility to guard the court’s precedents and image. The most famous example is his metamorphosis on the Miranda rule, requiring police officers to read suspects their rights. For years, Rehnquist had denounced the rule as constitutionally unsound. But after his ascent hevoted to uphold it, saying the warnings “have become part of our national culture.”

Roberts came to the court as chief, so there is no similar evolution to judge. But those who know him say his vision of the responsibilities of the chief is paramount. “Associate Justice Roberts would be much closer to Scalia than Chief Justice Roberts is in terms of their approach to cases,” says one lawyer, who spoke on the condition of anonymity because he argues Supreme Court cases. Anticipating this approach, Roberts pledged himself to the principle of stare decisis at his confirmation hearings and preached a gospel of judicial modesty, saying he came with “no agenda.”

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SOURCE: Washington Post

Robert Barnes is The Washington Post’s Supreme Court correspondent.

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