On Thursday, Chief Justice John Roberts drew fierce conservative fire for upholding Obamacare (again). A hero to political liberals for 24 hours, Roberts seemingly flipped positions on Friday to write the lead dissent opposing the nationwide legalization of gay marriage. What's with this guy?
Actually, his opinions in the marquee cases of the 2014-2015 Supreme Court term aren't difficult to reconcile. Agree or disagree with Roberts on the merits, one can easily discern an essentially restrained jurist concerned with promoting the machinery of democracy and the reputation of the highest court in the land.
In the Obamacare case, King v. Burwell, the chief justice wrote for a six-member majority that slogged through the convoluted Affordable Care Act (ACA) of 2010. His mission: figure out what Congress tried to accomplish by providing tax credits to encourage individuals to buy health insurance.
Roberts acknowledged that lawmakers did a sloppy drafting job. The law states that people can get the credits when they obtain coverage via an online exchange "established by the state." Conservative foes of the Obama administration demanded a literal interpretation of those four words, which would have limited the benefit to residents of just the 16 states that established their own exchanges. Limiting the credits in that fashion would have wrecked insurance markets and denied coverage to millions of Americans. "Congress passed the Affordable Care Act to improve health insurance markets, not to to destroy them," Roberts concluded. "If at all possible, we must interpret the act in a way that is consistent with the former and avoids the latter."
He explained the philosophy undergirding this conclusion: "In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—'to say what the law is.'" That's a quote from the foundational Supreme Court case about judicial power, Marbury v. Madison (1803). Saying what the law "is" turns out to be "easier in some cases than in others," Roberts continued. "But in every case we must respect the role of the legislature, and take care not to undo what it has done. A fair reading of the legislation demands a fair understanding of the legislative plan."
In dissent, Justice Antonin Scalia offered an angry protest. "The court," he wrote, "holds that when the [ACA] says 'exchange established by the state' it means 'exchange established by the state or the federal government.' That is of course quite absurd." Scalia also suggested that Roberts had twisted legal logic to aid the White House agenda. "We should start calling this law 'SCOTUScare,'" Scalia wrote. The Roberts majority, Scalia wrote, "favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."
A better reading of Roberts's opinion would emphasize his enthusiasm for carrying out the laws favored by "we the People," as reflected by enactments passed by our elected representatives and signed by our president.
In the 5-4 gay marriage case, Obergefell v. Hodges, Roberts wrote the lead dissent from Justice Anthony Kennedy's sweeping majority opinion that legalizes gay marriage in all 50 states. Roberts was notably gracious toward the gay couples who challenged state same-sex marriage bans. "If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision," he wrote. "Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."
By this he meant that Kennedy and the high court's four-member liberal wing had concocted a constitutional right to same-sex marriage, one that short-circuited a still-roiling political debate in the states. "Whether same-sex marriage is a good idea should be of no concern to us," Roberts wrote. "Under the Constitution, judges have power to say what the law is, not what it should be. ... The fundamental right to marry does not include a right to make a state change its definition of marriage."
Roberts grounded his position on gay marriage in judicial modesty and the credibility of the courts. He described himself as "skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues." Supreme Court justices, he continued, "are unelected and unaccountable." The legitimacy of judicial authority "depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and court when justices have exceeded their proper bounds."
I happen to agree with the bottom line Roberts reached on Obamacare. I disagree with him on gay marriage. But over two consequential days at the highest court in the land, the chief justice has shown consistency in articulating the role of the leader of the judicial branch of government. For that he deserves bipartisan respect.