Roberts Back to Reagan Roots in Guiding Court on Rulings

Last June, U.S. Chief Justice John Roberts abandoned his fellow Republican appointees to cast the vote that saved President Barack Obama’s health-care law.

This year, Roberts returned to his roots, pushing for a color-blind Constitution and trying to forestall the Supreme Court’s embrace of same-sex marriage.

The historic civil rights rulings from the court this week helped round out the picture of Roberts, 58, as he completed his eighth term as chief justice. He underscored the depth of his conservative views on social issues -- taking a stand on gay marriage for the first time and winning a landmark victory on voting rights -- while offering glimpses of the pragmatism that distinguishes him from colleagues such as Justice Antonin Scalia.

“I view this term as a reversion back to the person he was before,” said David Strauss, a constitutional law professor at the University of Chicago Law School. “He’s doing the kinds of things we would have expected him to do, based on his earlier years on the court.”

Roberts’ imprint was everywhere -- even if he wasn’t always in full control -- as the court ended its nine-month term with a wave of major decisions. He wrote two of the big four rulings, decisions that struck down a core part of the Voting Rights Act, the 1965 law aimed at barriers that had blocked millions of Southern blacks from voting, and steered the court away from a sweeping verdict on constitutional gay-marriage rights.

Never Left

Even in dissent, Roberts worked to influence the impact of the rulings. He contended that the decision striking down part of the U.S. Defense of Marriage Act, which has denied federal benefits to legally married same-sex couples, didn’t necessarily mean the nine-member court would eventually declare a constitutional right to gay weddings.

“I never thought the conservative Roberts left,” said Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania Law School. “I’ve always thought he was playing a long game.”

Some Republicans had their doubts last year after Roberts’s health-care vote drew the wrath of opponents of the measure, Obama’s signature legislative accomplishment during his first term. The criticism escalated after CBS News, citing unnamed people, said Roberts had originally voted to strike down the provision at the center of the case before switching sides.

Reagan’s Man

Yet Roberts’s conservative credentials date back decades. He made his mark in President Ronald Reagan’s Justice Department, where he argued against racial preferences. He went to Florida to help George W. Bush in the legal battle over the disputed 2000 presidential election.

His views on race -- and his rejection of special constitutional protections for minorities -- have been clear virtually since the day he joined the court in 2005 as an appointee of President Bush.

In a 2006 redistricting case, he said, “It is a sordid business, this divvying up by race.” A year later, he wrote in a school-integration case, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The just-completed term let Roberts turn those views into the blockbuster ruling in the Voting Rights Act case, which rejected the method used by Congress to force some parts of the country to get federal clearance before changing their voting rules or election districts.

Things Change

Writing for the court, Roberts said those barriers had largely disappeared. Blacks and whites vote at comparable rates in covered jurisdictions, minorities hold office at unprecedented levels, and the country has long since abolished the literacy and knowledge tests once used to keep blacks away from the polls, Roberts said.

“Nearly 50 years later, things have changed dramatically,” Roberts wrote in Shelby County v. Holder. The decision was a follow-through on his warning in a 2009 case that the Voting Rights Act provision was constitutionally suspect, and might be invalidated if Congress didn’t make changes.

This week’s ruling left open the possibility that Congress could enact an updated method for determining which states warrant being covered by the preclearance requirement. Even so, the partisan divide in Congress makes that unlikely to occur.

The court was less bold in its affirmative action case, Fisher v. University of Texas. It ordered stricter court scrutiny of race-based university admissions policies, while stopping well short of declaring them unconstitutional.

Surface Consensus

The 7-1 ruling, at least on the surface, was the type of “consensus” decision that Roberts promised during his 2005 confirmation that he would seek. The opinion by Justice Anthony Kennedy drew the support of both of the court’s affirmative action beneficiaries: Clarence Thomas, who opposes race-based admissions, and Sonia Sotomayor, who supports them.

“I expected Fisher to go farther,” Roosevelt said. “I wouldn’t be surprised if in a few years we got a decision saying that any consideration of race is impermissible.”

Roberts then doused speculation that he might join Kennedy and the court’s four Democratic appointees in support of gay weddings. In United States v. Windsor he voted to uphold DOMA, the 1996 law denying federal benefits to married gays, saying it was justified by an interest in preserving what at that time was the universal definition of marriage.

“At least without some more convincing evidence that the act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry,” he wrote.

Limiting Kennedy

The chief justice also sought to limit the impact of Kennedy’s majority opinion, saying he didn’t read it as laying the legal groundwork for a declaration that the Constitution guarantees same-sex marriage rights. The “dominant theme” of Kennedy’s opinion was a concern that the federal government was intruding into the realm of the states to define marriage, Roberts said.

“It is undeniable that its judgment is based on federalism,” Roberts wrote. He parted on that point with fellow dissenter Scalia, who wrote that the majority’s reasoning all but guaranteed those justices would eventually make gay marriage a constitutional right.

Tactics might also help explain Roberts’ approach toward California’s Proposition 8, the ballot initiative that banned same-sex marriage there.

Procedural Grounds

Faced with the prospect that the court might issue a broad ruling conferring gay-marriage rights, Roberts wrote a 5-4 decision that used procedural grounds to resolve the case, Hollingsworth v. Perry. That let the court duck the constitutional question, at least for now.

Roberts’s opinion said the defenders of Proposition 8 lacked the legal right to file an appeal. The decision had the effect of restoring a trial judge’s decision that struck down Proposition 8. Gay marriage is set to go forward in California within a month.

“It just seemed like a very appealing way for the court, and the chief justice in particular, to rule.” Strauss said. “It’s a restrained, modest decision. It gets the courts out of the picture, but at the same time proponents of gay rights get to claim victory. It’s sort of a win all around.”

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