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Tuesday, August 4, 2020

Opinion: Who is Chief Justice John Roberts?

Conservatives blasted Roberts as a turncoat who wanted to gain favor in the Washington dinner party circuit, Niehoff writes.
Continue reading on The Detroit News

In the past month, Chief Justice John Roberts has surprised observers of the Supreme Court by joining with liberal justices to decide high-profile and important cases by slim majorities. Conservatives hailed Roberts when George W. Bush appointed him, but those votes have prompted some commentators to conclude that the chief has drifted decidedly to the left.

The history of the court includes numerous instances of Republican-appointed justices voting along more liberal lines than their presidential sponsors had hoped or expected. Two of the court’s liberal icons, Earl Warren and William Brennan, were appointed by Dwight Eisenhower. Ronald Reagan appointed Sandra Day O’Connor, who voted to uphold affirmative action, and Anthony Kennedy, who voted to uphold same-sex marriage. In both cases, they wrote the majority opinions.

The list goes on and on. Richard Nixon appointed Harry Blackmun, who wrote the majority opinion in Roe v. Wade. Gerald Ford appointed John Paul Stevens, and George H. W. Bush appointed David Souter, both of whom became identified with the court’s liberal wing.

This historical pattern prompted conservative political commentator Marc Thiessen to ask: “Why are Republicans so awful at picking Supreme Court justices?” And the recent votes of our current chief justice have observers wondering whether his appointment may be the most recent example. It turns out, however, that things are much more complicated.

For conservatives, the trouble started in 2012 when Roberts wrote the opinion upholding the Affordable Care Act’s individual mandate, which imposes fines on people who do not carry health insurance, as a tax. Many court observers had expected the ACA to meet an unceremonious death, with Roberts presiding over the funeral. It didn’t play out that way, and conservatives fumed.

Still, few observers believed that this lone opinion signaled a substantial and enduring ideological change on the part of the chief. Many experts saw it as an effort by Roberts to protect the court from the sort of credibility crisis that it faced after the 2000 decision in Bush v. Gore, which hurt public confidence in the institution. Why did Roberts vote the way he did? “Quite simply,” constitutional law scholar David Franklin opined, “to save the Court.”

But when Roberts voted again to uphold a different provision of the ACA in 2015, conservatives grew more worried. His most vocal critics included his colleague Antonin Scalia, who wrote in dissent that the court had preserved the law only through “somersaults of statutory interpretation.” Still, given how Roberts voted in 2012, the 2015 decision may have been predictable.

In any event, after the ACA decisions, the chief continued to side periodically with the liberal members of the court. In 2019, he joined them to invalidate a Trump administration decision to add a question on citizenship to the 2020 census. In a bluntly worded opinion, Roberts effectively accused Commerce Secretary Wilbur Ross of lying about his reasons for making the change.

Conservatives blasted Roberts as a turncoat who wanted to gain favor on the Washington dinner party circuit and in the editorial pages of liberal newspapers. A few apoplectic commentators called for his impeachment.

Then, in just the last few weeks, Roberts delivered a number of surprises that fall squarely into the whopper category.       

In mid-June, he signed onto a decision holding that a landmark federal civil rights law protects gay and transgender workers from employment discrimination. A few days later, he joined the liberal justices in a decision that prevented the Trump administration from ending the Deferred Action for Childhood Arrivals or Dreamers program, which protects about 700,000 young immigrants from deportation. And then, at the end of the month, he added his critical fifth vote to a decision that struck down a Louisiana abortion law that would have left the state with a single clinic.

Our political discourse loves a clear and simple narrative and the one here goes like this: John Roberts stands in a long line of failed appointments by Republican presidents who had hoped to move the court toward the right. Like so many others, the argument goes, Roberts has moved left and at an accelerating pace. In this vein, a recent headline by an op-ed contributor in the Washington Post declared: “John Roberts has gone full Anthony Kennedy.”

Well, I wonder. An adage holds that for every complex problem a solution exists that is clear, simple and wrong, and I suspect that the challenge of figuring out what’s going on with Justice Roberts offers a case in point. I’m skeptical that sweeping assessments will help us understand a jurist as Delphic as this one.

Yes, he twice voted in support of the ACA. But a desire to protect the credibility of the court may explain it.

Yes, he voted against the citizenship question on the census. But on the same day he also joined his conservative colleagues in a decision that rejected a role for the courts in remedying political gerrymandering — for conservatives, a much more important issue.

Yes, he voted to uphold the rights of gays and transgender people under federal law. But so did Trump appointee Neil Gorsuch — who, in fact, authored the majority opinion.

Yes, he provided the vote necessary to strike down the Louisiana abortion law. But he wrote separately to make clear that he did so because he believed existing precedent controlled the outcome.

Plus, in this past term he joined his conservative colleagues multiple times to create 5-4 majorities in cases involving important issues like immigration and public funding for religious schools.

When conservatives complain that they do not find Roberts a reliable or predictable ally, we can imagine liberals responding with “cry me a river.” In any event, suggestions that he has emerged as the new Blackmun, or even the new Kennedy, strike me as grossly premature.

We will find out who Roberts is as soon as he tells us. And not one minute before.

Len Niehoff is a professor at the University of Michigan Law School.

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