This time a year ago, the conservative chief justice
whose vote saved
President Obama’s health care law was a figure of mystery. In fact,
“The Mystery of John Roberts” was the title I gave to one of
my Opinionator columns
for The New York Times last summer. The right-wing blogosphere had
turned on him venomously. Liberals didn’t know what to make of his
crucial vote, or of him. What was his game? Was he for real?
What a difference a Supreme Court term makes.
What
became clear during the momentous term that ended Wednesday is that the
real Chief Justice Roberts has been there all along, hiding in plain
sight. We just needed to know where to look.
In
the case of the Affordable Care Act, it’s plain in hindsight that the
real John G. Roberts Jr. was not the one who, with evident reluctance
and seemingly close to the last minute, joined the court’s liberals to
place a taxing-power Band-Aid on the mandate’s penalty provision. In his
opinion, he referred unenthusiastically to that statute-saving
interpretive move as a “duty.”
Rather, the real John Roberts was
the one who as part of that same opinion — not the part that ultimately
counted — issued a full-throated condemnation of Congress’s exercise of
its commerce power to have enacted the mandate in the first place. “That
is not the country the framers of our Constitution envisioned,” he
declaimed.
In saving the mandate’s penalty provision as a tax, he
followed his head. In denouncing the very notion that Congress might
require people to buy health insurance, he followed his heart. In the
term that just ended, head and heart were no longer at war.
THAT is not to say that he was always in control of the court, or that his view always prevailed. In
United States v. Windsor, the decision that struck down the federal Defense of Marriage Act, he was one of four dissenters.
Windsor
was one of the four late June decisions by which the term will be
known, and it was in fact the only major decision out of 73 argued cases
that found the chief justice on the losing side. (He dissented a total
of 11 times, the lowest number among all the justices, after Justice
Anthony M. Kennedy’s 7.)
A significant point about the Defense of
Marriage Act is that it was an anomaly among the other hot-button cases
in terms of its presence on the court’s docket. A federal appeals court
had found DOMA unconstitutional, and while the Supreme Court has nearly
complete discretion to choose the cases it wants to decide, the justices
feel obliged to review a decision that has invalidated a federal
statute. Granting such a case (the health care case was another) is
itself a neutral act that tells nothing about the justices’ appetites.
The court’s action in reaching out to decide the future of voting rights in
Shelby County v. Holder and affirmative action in
Fisher v. University of Texas was, by contrast, an exercise of pure will, fueled by a desire to change settled law.
The decision to review
Hollingsworth v. Perry,
a case concerning Proposition 8, the ballot measure that banned
same-sex marriage in California, may or may not fit into this category.
Chief Justice Roberts wrote for the 5-to-4 majority that the opponents
of same-sex marriage, who lost in the lower courts, lacked standing to
appeal. It was the justices themselves who added the question of
standing to the case when they accepted the appeal last December. Given
the chief justice’s expressed interest in tightening up the rules for
standing, along with general confusion in the courts about whether
sponsors of a referendum can assert the interests of a state unwilling
to defend it, it’s possible that the standing issue is what drove this
case from the beginning.
So if there is an overarching lesson to
be derived from this term, a consumer’s guide to the Roberts court, it
is follow the docket. The 73 cases the court decided between the
beginning of last October and the end of June were selected from some
8,000 appeals. Year after year, most of that large number — prisoner
appeals raising questions of fact rather than law — have little claim on
the court’s attention. But hundreds, certainly, present issues with
which the court might fruitfully engage.
Each case the court
selects, by the agreement of at least four justices, under its internal
rules, is a vehicle intended to accomplish something: to clarify the
law, interpret an ambiguous statute, resolve conflicting decisions among
the lower courts or, as in the Shelby County and Fisher cases, to
change the status quo.
His voting rights opinion was startling for its activism.
Here
is where the term got interesting. In its sweeping disregard of
history, precedent and constitutional text, the chief justice’s 5-to-4
opinion in the voting rights case was startling for its naked activism,
but no one watching the court over the past few years could have been
surprised by the outcome. The court made clear in a
2009 decision
that it had Section 5 of the Voting Rights Act, the “preclearance”
provision, squarely in its sights. (Justice Ruth Bader Ginsburg’s
devastating dissenting opinion last week read to me as if major portions
had been written back in 2009, rendered unnecessary by the compromise
outcome then, but saved for the day that she knew was coming.)
The
chief justice’s antipathy toward the Voting Rights Act itself was well
known, and was a significant reason that major civil rights groups
opposed his confirmation to the court in 2005. Following his nomination,
memos came to light that he had written more than 20 years earlier as a
young lawyer in the Reagan administration.
The debate within the
administration then was over whether Congress should make it clear that a
violation of the Voting Rights Act did not require proof of intentional
discrimination, as a 1980 Supreme Court
decision
had held, and that proof of a discriminatory effect should be
sufficient. The looser standard, which Congress eventually adopted,
would “provide a basis for the most intrusive interference imaginable by
federal courts into state and local processes,” John Roberts warned in a
memo to Attorney General William French Smith.
Questioned at his
confirmation hearing by Senator Edward M. Kennedy about his views on the
Voting Rights Act, Mr. Roberts, then a judge, asserted that he had been
acting at the time as a staff lawyer advising a client, but that as a
judge he had an open mind.
In contrast to the voting rights
decision, the University of Texas affirmative action decision was a
surprise for its failure to accomplish anything of significance. It was a
vehicle that never made it to the intended finish line. True, the
7-to-1 opinion vacated the lower court’s ruling that had upheld the
university’s limited consideration of race as part of its admission
plan. But Justice Kennedy’s 13-page majority opinion applied what he
described as existing law, from which he said the lower court had
deviated.
So if the voting rights case was a mission accomplished,
Fisher v. University of Texas was a mission that failed, conspicuously
so, after eight months of deliberation following last October’s
argument. I assume there were four justices — the chief justice along
with Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — who were
eager to declare the Texas affirmative action plan unconstitutional, if
not to upend affirmative action altogether. Justice Kennedy, presumably,
couldn’t be coaxed fully onboard.
Lorenzo Petrantoni
The case may have played out internally as a potential repeat of one of the Roberts court’s first major decisions, the
Parents Involved case
from 2007. In that case, which concerned racially conscious K-12
student assignment plans in districts struggling to preserve the
hard-won gains of integration, Chief Justice Roberts failed to persuade
Justice Kennedy to go along with a sweeping opinion declaring that
preventing resegregation was not a “compelling interest” sufficient to
justify a policy that took students’ race into account. Rather than
accommodate Justice Kennedy’s more modulated view, which was that the
districts’ interest was compelling but the remedies they chose were too
broad, the chief justice stuck to his position and ended up writing only
for a plurality of four rather than a majority of five.
It was a
notable failure of his early leadership that perhaps explains his
silence in last week’s case. While Justices Thomas and Scalia expressed
their own views in separate concurring opinions, Chief Justice Roberts
said nothing, silently joining what was clearly a brokered compromise,
biding his time.
If there is no mystery about the nature of the
chief justice’s views, I remain baffled by their origin. Clearly, he
doesn’t trust Congress; in describing conservative judges, that’s like
observing that the sun rises in the east. But oddly for someone who
earned his early stripes in the Justice Department and White House
Counsel’s Office, he doesn’t like the executive branch any better.
He made this clear in an opinion dissenting from a 6-to-3 decision this term in an administrative law case,
City of Arlington v. Federal Communications Commission.
The question was whether, when the underlying statute is ambiguous,
courts should defer to an administrative agency’s interpretation of its
own jurisdiction. The answer was clearly yes, according to Justice
Scalia’s majority opinion that built on decades of precedent on judicial
deference to agencies. The chief justice’s dissenting opinion was a
discordant screed that bemoaned the modern administrative state with its
“hundreds of federal agencies poking into every nook and cranny of
daily life.”
Congress can’t be trusted. The executive branch is out of control. What’s left?
The Supreme Court. There’s a comforting thought as we await Year 9 of the Roberts court.
Labels: U. S. Supreme Court
