Right On: John Roberts Is Playing the Long Game
With the Supreme Court poised to reconvene the first Monday in October, let’s clear the air about last term’s supposed turn to the left: It didn’t happen.
The confusion is understandable. On June 25, Chief Justice John Roberts led a 6-3 majority that upheld President Obama’s health-care reform program in the face of a partisan Republican attack. The next day, the high court vindicated same-sex unions by a 5-4 vote. The two liberal victories created the illusion of something larger and more dramatic, prompting the hyperbolic wing of the Republican Party to condemn the supposed leftward lurch. Curt Levey, president of the Committee for Justice, a right-leaning advocacy group, declared Roberts “dead to conservatives.”
That statement reveals a lot more about the intemperance of certain conservatives than the ideological state of the chief justice. On credentials, remember that Roberts has a résumé that would bring tears of joy to Barry Goldwater and William F. Buckley. Nominated by George W. Bush in 2005, he clerked at the Supreme Court for his predecessor, Nixon-appointee William Rehnquist, came of age professionally in the Reagan administration, and represented large corporations at a major Washington law firm. All that’s missing is an internship at the Heritage Foundation.
It’s in its decisions that the Roberts court really shines for the right. District of Columbia v. Heller (2008) established for the first time in the court’s 226-year history that the Second Amendment protects an individual’s right to own a handgun. In Shelby County v. Holder (2013), Roberts wrote a majority opinion that denuded the Voting Rights Act of 1965 and ushered in an era of voter ID laws and other attempts to discourage minorities and the poor from casting ballots. In the 2015-16 session, this tendency likely will recur in cases on race relations, voting, unions, and abortion.
The chief justice’s majority opinion in last term’s Obamacare case revealed not a conservative-gone-wobbly, but a sophisticated steward of the court’s status as an independent institution. Roberts, 60, occasionally steps back from the ideological barricades, not for lack of spine but because he’s playing a savvy long game. In June 2012, with the presidential campaign heating up, he cast the decisive vote rejecting an earlier, equally partisan challenge to Obama’s Affordable Care Act. A Republican-dominated majority killing a Democratic president’s signature legislation in an election year would have invited unflattering comparisons to Bush v. Gore (2000), in which a pre-Roberts conservative majority handed the White House to George W. Bush.
But, in overshadowed passages of his 2012 controlling opinion, Roberts cobbled together majorities that curbed the ACA’s expansion of Medicaid and reinterpreted the Constitution’s Commerce Clause to give the most restrictive interpretation of federal power over the economy since the New Deal-era justices stopped knocking down Franklin Roosevelt’s legislation. (Keep an eye on that facet of the opinion; it’s a sleeper that at some point will come back to vindicate corporate interests.)
This year, in Assault on Obamacare: The Sequel (aka King v. Burwell), Roberts again defused an ugly political clash—and not incidentally blunted Democrats’ ability to run against an overreaching Supreme Court. Writing for a six-member majority, he rejected a blatant bid to wreck Obamacare. “Congress passed the Affordable Care Act to improve health insurance markets, not 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.”
When the stakes are even slightly less dramatic, however, the Roberts-led conservative quintet—which includes Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas—asserts itself. Animated by an expansive reading of the First Amendment, the 2010 ruling in Citizens United v. Federal Election Commission swept away long-standing precedent, contradicted Congress, and made it easier for moneyed interests to influence the elections. Corporations have generally had a field day before the Roberts court, winning new barriers against consumer class actions and human-rights suits. A study published in 2013 in the Minnesota Law Review ranked the 36 justices who’ve served on the high court from 1946 to 2011 in terms of their pro-business votes. All five of the current court’s conservative members appeared in the top 10. Over the entire 65-year period, Roberts and his fellow George W. Bush appointee Alito were labeled most likely to favor business.
Recent gay-rights cases, by contrast, illustrate that jurisprudential trends, like all trends, have their exceptions. Societal attitudes have shifted rapidly toward tolerance of homosexuality, and Kennedy, the “swing justice” on some high-profile ideological issues, has joined a four-member liberal bloc to knock down antigay laws.
But other seeming liberal victories are better explained as mere holding actions. A 5-4 decision in June in a housing discrimination case from Texas provided an illustration. With Kennedy writing the majority opinion, the court ruled that alleged bias victims don’t have to prove intentional bigotry; statistical evidence that blacks or Hispanics were harmed may be sufficient. Civil-rights groups celebrated, but this was no breakthrough. It was more like dodging a bullet. Every federal appeals court that had addressed the housing-bias question came out the same way. The justices generally don’t explain why they accept cases for review, but it seems fair to speculate that Roberts, Alito, Scalia, and Thomas voted to hear the Texas case but then couldn’t persuade Kennedy to come along for a precedent-busting ride.
In the new term, the court will revisit the controversy over whether public universities may consider applicants’ race in admissions decisions. The current constitutional interpretation: yes, to a limited degree. Roberts, Alito, Scalia, and Thomas are almost certain to push for a clear no. Kennedy, I predict, will swing conservative on affirmative action in higher education. If I’m correct, look for invocation of a characteristically pithy remark Roberts used in an opinion in 2007: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Other pending high-profile cases would allow conservative justices to curtail the power of public-sector unions and to revisit the meaning of the fundamental electoral principle of “one person, one vote.” The labor case asks whether unions may require workers who aren’t members to help pay for collective bargaining. Labor organizers are justifiably girding for a defeat orchestrated by Roberts.
The election case provides the opportunity for the court to say state voting districts should have the same number of eligible voters, as opposed to the same number of residents—including legal immigrants who aren’t citizens, undocumented immigrants, children, and prisoners. If the court says relying on total population isn’t mandatory, that would likely prompt red states to shift to the eligible-voter approach—a move that would tilt political power from cities to rural areas and therefore constitute a boon for Republicans.
Abortion isn’t yet on the high court docket, but odds are it will return before the end of this term. In June the U.S. Court of Appeals for the Fifth Circuit upheld a Texas law that women’s health advocates warn would have the effect of shutting down most of the second-most-populous state’s roughly 40 remaining abortion clinics. The state law requires the clinics to meet the same standards for equipment and staffing as hospital-style surgical centers. The legal question for the justices would be whether Republican-controlled Texas has created an “undue burden” on the constitutional right to abortion established by Roe v. Wade (1973). There’s little doubt that, in the chief justice’s view, Texas has ample authority to impose the rules it did. If that understanding prevails, the Supreme Court would be another step closer to overturning Roe.
Laurence Tribe, the preeminent appellate advocate and co-author of Uncertain Justice: The Roberts Court and the Constitution, warns against the entire endeavor of “trying to measure the left/right swing of the Supreme Court by bracketing its annual terms.” Lumping decisions together from one April Fool’s Day to the next would be no less arbitrary. “This is a set of nine justices whose views can best be represented by vectors pointing every which way,” Tribe says.
I suspect Roberts would agree with Tribe’s skepticism about term-by-term scorecards. During his confirmation hearing in 2005, Roberts said he had no agenda whatsoever and promised “to call balls and strikes and not to pitch or bat.” With respect to Tribe and Roberts, during the latter’s decade as umpire-in-chief, conservatives have tallied an impressive enough winning record to suggest something more purposeful than the sum of disparate vectors.