Corporate Accountability

Chief Justice John Roberts Charts Own Path, Frustrating Right Again

Move prompts anger from GOP lawmakers who say John Roberts has drifted from conservative principles




Chief Justice John Roberts joined the Supreme Court as a conservative darling who the right hoped would influence the nation’s laws for decades.


On Thursday, for a second time, he wrote the ruling that preserved President Barack Obama’s signature legislative achievement.


The ruling, however, made clear the chief justice is building another kind of legacy, one in which he is trying to keep the Supreme Court out of Congress’s way in important and potentially divisive policy areas.


“In every case we must respect the role of the legislature, and take care not to undo what it has done,” Chief Justice Roberts wrote in the 6-3 decision upholding the national use of insurance subsidies that are a centerpiece of the Affordable Care Act.


When the Senate was considering his confirmation to the high court in 2005, the nominee famously told lawmakers that being a judge was akin to the role of an umpire, to call balls and strikes but not to determine the outcome of the game.


In the decade since, liberals and conservatives alike have at times questioned his fidelity to that statement, or praised him for sticking to it, depending on the case.


“Chief Justice Roberts is a very conservative justice who has an unshakable constitutional commitment on issues such as race and religion that isn’t likely to change over time,” said Doug Kendall, president of the Constitutional Accountability Center, a liberal legal group. “What he proved in today’s health-care case is that in statutory cases, he’s willing to follow what Congress says to where it most logically leads. Sometimes this produces conservative results and sometimes more progressive ones.”


The Supreme Court upheld the Affordable Care Act’s tax credits Thursday, preventing a chain of reactions that would have collapsed most of the law.


The central themes of the chief justice’s latest opinion, which all but ensures the legal foundations of the health law are beyond challenge, were similar those he expressed when he joined with liberal justices to uphold the health law in 2012, said Duke University law professor Neil Siegel. “Roberts is telling people again that the place to have this fight over the Affordable Care Act is in the democratic arena, not in the federal courts,” he said.


The decision prompted anger from Republican lawmakers and opponents of the health law. “It seems the chief justice finds an Obamacare exception to every legal principle,” said Michael Cannon of the libertarian Cato Institute, who helped set the groundwork for the latest court challenge.


Sam Kazman of the libertarian Competitive Enterprise Institute, which bankrolled the lawsuit, said the chief justice was able to rule for the government only by adopting a very loose interpretation of the words Congress wrote in passing the health law. Added lawyer Michael Carvin, who argued the case for the challengers: “The big loser today was the rule of law.”


Chief Justice Roberts’ opinion, which was joined by four liberal justices and conservative Justice Anthony Kennedy, lamented the “unfortunate reality” that the Affordable Care Act “contains more than a few examples of inartful drafting.”


Lawmakers, he noted, wrote key parts of the statute behind closed doors and passed much of the law using a complicated procedure that limited opportunities for legislative debate. “As a result, the act does not reflect the type of care and deliberation that one might expect of such significant legislation,” he wrote.



The law’s shortcomings left the court to confront what it said was ambiguous language on whether insurance subsides should be available nationwide, or just in states that established their own insurance marketplaces. The chief justice said such ambiguity should be resolved in the government’s favor, because it was implausible that Congress meant for individuals in some states to receive insurance subsidies, but not in others.


In some ways, the stakes for Thursday’s ruling were higher than in 2012. That was before roughly 6.5 million Americans received subsidies, in the form of tax credits, to make buying health insurance more affordable.


The ruling comes at a time of deep political polarization, and a desire by the chief justice and other members of the court to keep their institution from being viewed as another political body. That wariness has lingered since Bush v. Gore, the case that decided the 2000 presidential election and whose impact on the court still worries some justices.


Conservative criticism of the chief justice has been bubbling since he wrote the Supreme Court’s first opinion three years ago upholding the Affordable Care Act. For some GOP lawmakers, it spilled over Thursday.


Rep. Matt Salmon (R., Ariz.) said he wasn’t sure if Chief Justice Roberts could still be considered a conservative at all. “I don’t know that you can label the guy in any way, shape or form right now,” Mr. Salmon said.


On Thursday, Justice Antonin Scalia in his dissent suggested there was nothing limited or conservative in the chief justice’s approach, accusing the court of doing legal “somersaults” to fix a supposed flaw in the health law that the court had no business rewriting. The American people “made Congress, not this court, responsible for both making laws and mending them,” he wrote.


The left also hasn’t approved in some circumstances when the chief justice sought to uphold laws passed by Congress, such as when he dissented in 2013 from the court’s ruling striking down a federal law that denied federal benefits to legally married same-sex couples.


Liberals were equally critical that same year when he led a conservative majority that nullified a key provision of the Voting Rights Act. The voting rights provision had required a group of mostly Southern states to seek federal permission before changing election practices. The chief justice said the requirement was based on decades-old data and that Jim-Crow era practices had been eradicated.


Chief Justice Roberts also was part of a conservative bloc in the 2010 Citizens United ruling that invalidated restrictions on corporate and union spending in elections. The court’s majority said the restrictions chilled protected political speech.


As for the health law, University of Chicago law professor David Strauss said Thursday’s ruling did in one respect mark a change in tone for the chief justice, even if his two health-law rulings had the same effect of preserving the Affordable Care Act.


“The first time, you had the feeling he was reluctant to do it. Here he seems to be taking more of a stand,” Mr. Strauss said. “It’s a much more affirmative statement about the role of the court and the role of Congress.”

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