Federal Courts and Nominations

Chief Justice John Roberts’ Supreme Court at 10, defying labels

By Richard Wolf


(GRAPHIC: Supreme Court’s top cases under John Roberts)


WASHINGTON — Three years into John Roberts’ tenure as chief justice of the United States, the Supreme Court ruled by one vote that the Second Amendment protects the right to keep guns at home for self-defense.


Six years later to the day, the court ruled — again by one vote — that the 14th Amendment requires states to issue marriage licenses to same-sex couples.


Leaning right on guns but left on gays, right on race and religion but left on health care reform, the Roberts Court reaches its 10-year anniversary this week at the fulcrum of American public policy, culture — and politics.


From the court’s landmark Citizens United v. Federal Election Commission decision that allows unlimited corporate spending in political campaigns to its razor-thin ruling that upheld President Obama’s signature health care law, the high court under Roberts has struggled to balance a strict reading of the Constitution and federal statutes against the pressures of politics and public opinion.


It hasn’t always been the “modest” court Roberts said he wanted at his confirmation hearings in 2005. “The role of the judge is limited,” he said then. “The judge is to decide the cases before them. They’re not to legislate. They’re not to execute the laws.”


Despite Roberts’ desire that the court maintain consistency, consensus and a low profile, the justices have swung right and left in rulings that affect all aspects of American life, from post-9/11 national security and international relations to race, sex, religion and commerce. It has tackled issues of birth and death, abortion and contraception, the air we breathe and the water we drink.


“This is a court that really wants to be and is at center stage of American public life,” says Erwin Chemerinsky, dean of the University of California-Irvine School of Law. “This court has decided as many blockbuster cases with huge social impact as almost any 10-year period in American history.”


Along the way, the court that presidents from Ronald Reagan to Barack Obama built has wrestled with problems involving modern technology and an interconnected world, forcing nine justices who qualify for AARP membership to navigate GPS, decipher DNA and test-pilot the most violent of video games.


The result is that 10 years after Roberts’ confirmation on Sept. 29, 2005, the court is still struggling to define itself,


That has made the court a bit of an orphan in Washington’s internecine politics — reviled by liberals for decisions such as Citizens United and a series of rulings against racial preferences, but increasingly denounced by Republicans who have seen GOP presidents name 12 of the last 16 justices without winning five consistently reliable votes.


“We’re frustrated as conservatives,” Sen. Ted Cruz, who clerked for Roberts’ predecessor as chief justice, William Rehnquist, said during the most recent Republican presidential debate. “We keep winning elections, and then we don’t get the outcome we want.”


They’ve had plenty of chances. Four justices are new to the court in the last decade, including Roberts, the nation’s 17th chief justice, and two history-advancing women, Sonia Sotomayor and Elena Kagan. None, however, has had the impact of the fourth new justice, Samuel Alito, whose movement conservatism represents a stark contrast with his predecessor, the moderate Sandra Day O’Connor. He has joined Justices Antonin Scalia and Clarence Thomas on the court’s right flank.


It was Alito’s confirmation in 2006 that began the court’s march to the right. He produced the fifth vote against partial-birth abortion and school desegregation plans, and for the right to keep guns at home for self-defense. A few years later, he was the fifth vote in Citizens United — the case that has come to symbolize the Roberts Court’s free-market conservatism, and which has generated the loudest liberal protests, from the president on down.


Obama’s nominations of Sotomayor in 2009 and Kagan the following year represented a bit of a counterweight. Sotomayor has developed one of the most liberal voting records among Supreme Court justices of the last 70 years. Kagan, a former Harvard Law School dean and U.S. solicitor general, has become a savvy questioner and witty writer who pushes back against her conservative colleagues. Their leader and role model, 82-year-old Justice Ruth Bader Ginsburg, has used their ascension to create a solid liberal voting bloc — one that dominated the court last term.


As a result, the court under Roberts has fallen into a pattern of being characterized as conservative in most cases, liberal in some — just the sort of labels the chief justice has sought to avoid. With Kagan’s confirmation, the court for the first time appears just as partisan as the other branches of government: five conservatives put there by Republican presidents, four liberals named by Democrats.


“Roberts has a task and a half,” says Lee Epstein, a Washington University Law School professor who collects and analyzes data about the court. “It’s a political court. It’s an ideological court. But he’s confronted with the additional problem that it looks like a partisan court.”


On so many close cases, it’s also Justice Anthony Kennedy’s court — a bench divided 4-4 with Kennedy in the middle. President Reagan’s third choice in 1988, Kennedy has replaced O’Connor as the perennial swing vote. He’s often conservative on business and criminal law issues, but with a libertarian streak and a soft spot for civil rights — most notably gay marriage.


And then there is Roberts, who each year becomes tougher to label. As chief justice, he must balance his judicial philosophy against the court’s — and his own — legacy. At 60, he is likely to preside for many years if not decades to come — perhaps even threatening Chief Justice John Marshall’s record of 34 years at the center of the bench.


“He doesn’t want to go down in history as just another political activist,” says David Strauss, a University of Chicago Law School professor who has argued 18 cases inside the marble courtroom. “He wants to go down in history as a chief justice who did the job right.”




Roberts cut a modest figure before the Senate Judiciary Committee when making his case in September 2005. “It’s my job to call balls and strikes, and not to pitch or bat,” he assured lawmakers. The Senate rewarded him with a 78-22 confirmation vote, a better percentage than the justices who have followed. Obama, a freshman senator at the time, voted “no.”


Mostly true to his word, Roberts’ tenure has been marked by an 

incremental approach to decision-making — issuing narrow rather than bold rulings that have the inevitable effect of bringing the saml issues back to the high court again and again. Some of the biggest cases of the 2015 term that opens next Monday fit that category, from racial preferences at public universities to the financing of public employee unions.


Then there are the occasional blockbusters, such as Citizens United or Roberts’ 5-4 opinion in 2013 striking down the key section of the Voting Rights Act. This year’s 5-4 decision making same-sex marriage legal nationwide — written by Kennedy over Roberts’ vociferous dissent — fits that description.


In rare instances, the court’s conservatives have reached beyond the confines of the case to decide an even bigger question, such as the Citizens United ruling. The result has been a huge surge in outside spending on elections, with an overwhelming tilt toward conservative candidates. “Five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law,” former justice John Paul Stevens groused in dissent.


On civil rights cases, the Roberts Court was quick out of the box. Roberts wrote the 5-4 decision in 2007 that struck down school desegregation plans in Seattle and Louisville, famously declaring: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”


Proponents and opponents of his approach agree on one thing: Roberts tries to apply color-blind principles to cases involving racial preferences and voting rights. They disagree, however, on whether that lofty goal is appropriate for the times. “There is the potential for the Roberts court to be remembered as the court that ended the use of racial preferences and classifications in American public life,” says Edward Blum, the conservative activist who brought several of the cases to the high court. “That would be a monumental achievement for this court.”


But David Gans of the liberal Constitutional Accountability Center notes that after a decade as chief justice, “Roberts is still searching for a fifth vote to strike a decisive blow against affirmative action and other race-conscious policies.”


Quite the opposite is true of policies restricting the ability of gay men and lesbians to marry. Two years after ruling that the federal government must recognize such marriages in the 13 states that sanctioned them at the time, the court in June required all states to follow suit. There was nothing incremental about that decision — and Roberts was so miffed, he summarized his dissent from the bench for the first time in a decade.


“Today, five lawyers have ordered every state to change their definition of marriage,” the chief justice said. “Just who do we think we are?”




Who they are, it appears, depends on the issue before them.


A conservative court? It’s certainly been that on campaign spending, religious expression, abortion and contraception, gun rights and the death penalty. A 2013 study published in the Minnesota Law Review found a heavy tilt toward business, with the U.S. Chamber of Commerce on the winning side more often than the past; Alito and Roberts ranked as the two justices most friendly to business since 1946.


A liberal court? In the last term, liberals were in the majority on all the major cases right up until the final day, when the court upheld a controversial form of lethal injection and put a crimp in the Environmental Protection Agency’s plan to regulate air pollution. Justice Stephen Breyer, the fourth reliable liberal vote, had the court’s best winning record.


In most controversial cases, the breakdown was the same: 5-4, with the Republican and Democratic presidents’ nominees lining up on opposite sides. “From an institutional perspective, I think that is disconcerting,” says Kenji Yoshino, a constitutional law professor at New York University School of Law. “It makes the court look like just another political branch.”


That’s not what Roberts envisioned during his swearing-in ceremony in the East Room of the White House a decade ago. Calling it a “bedrock principle,” the chief justice said: “Judging is different from politics.”


That was a difficult case to prove five years earlier, when the court voted 5-4 in Bush v. Gore to stop the presidential recount process, resulting in George W. Bush’s election.


Still, the court enjoyed favorable poll ratings from the time of Roberts’ confirmation until 2012, when the court began to weigh in on some of the nation’s most intractable problems: Health insurance and immigration, to be followed by voting rights and same-sex marriage. Today, Americans are almost equally divided on the court’s effectiveness.


Then there are some decisions that defy description — and, seemingly, explanation. Into that category fits Roberts’ 2012 ruling that saved Obama’s health care law, while at the same time denying the government’s central claim that it was a constitutional form of interstate commerce. It also struck down the law’s mandate that states expand Medicaid coverage for the poor or risk severe penalties.


Perhaps the biggest mystery of the court’s past decade surrounds Roberts’ opinion. Did he switch his vote rather than allow five Republican nominees to kill a Democratic president’s signature achievement?


What is clear is that, like Citizens United, a ruling against the Affordable Care Act then or again this year would have painted the court as blatantly partisan. Both times, Roberts blinked. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he said in June.


“These two cases were a big test for his stewardship, about the reputation and functioning of the court,” says Ron Pollack, executive director of the health care advocacy group Families USA.


“You can’t be a great chief justice and the leader of an ideological movement at the same time,” said Doug Kendall, president of the liberal Constitutional Accountability Center, which conducted a year-long review of the Roberts Court. “He has to decide whether to be with them or whether to be chief justice.” (Kendall passed away Saturday after a battle with colon cancer.)




A major goal as chief justice, Roberts said in 2005, would be getting the justices “to speak as a court” more than in the past. Roberts was dismissive of their penchant for writing separate concurring and dissenting opinions, rather than compromising on decisions that carry the full court’s imprimatur.


“The more justices that can agree on a particular decision, the more likely it is to be decided on a narrow basis,” he said. “I think that’s a good thing when you’re talking about the development of the law — that you proceed as cautiously as possible.”


The 2013 term, Roberts’ ninth as chief justice, produced a surprising display of unanimity. Two-thirds of the cases were decided without dissent, a remarkable percentage. But it appears to have been an anomaly; overall, about 40% of the court’s cases are unanimous, the same as previous courts.


Unlike previous courts has been the justices’ ever-escalating cacophony of questions and comments from the bench — much to Roberts’ chagrin. He has occasionally granted lawyers extra time at the lectern because they barely could get a word in edgewise. “Oral arguments,” Epstein says, “have become something of a circus.”


On some issues, however, the court has been united. Under Roberts, it has surpassed previous courts in defending First Amendment rights to free speech and religious expression. Bloody videos depicting animal cruelty, Facebook posts that appear to threaten violence, anti-gay protests outside military funerals — all have been upheld by this court. (The same did not apply to a student suspended over a banner reading, “BONG HiTS 4 JESUS.”)


The justices also have bridged some differences over the rights of criminal defendants, limiting police searches upon arrests, prohibiting the placement of GPS devices on suspects’ cars, and ruling unanimously last year that cellphones and smartphones are virtually sacrosanct. The conservatives’ acquiescence has been led by Scalia, who quipped in 2008, “I ought to be the pin-up for the criminal defense bar.”


Much of the metamorphosis from a court that routinely favored law enforcement is due to technological advancements that raise the threats to privacy. “The court has realized that it’s walking into new terrain,” says Steven Shapiro, legal director of the American Civil Liberties Union. “It can’t allow technology to override privacy.”


It’s when the court is functioning at its best that, critics say, the justices’ refusal to allow cameras into the courtroom seems hard to defend. Yet Roberts, joined by all his colleagues, has been consistent in holding the line at print and audio reports. Let cameras in, they say, and juxtaposed snippets from oral arguments will poke fun of the justices and misinform Americans.


That doesn’t sit well with groups supporting the public’s right to know. “What’s lost is the opportunity for the American people to see a Washington institution that works,” says Gabe Roth, executive director of the advocacy group Fix the Court. Allowing cameras inside, he says, “would only add to Americans’ respect for it and reverence for it.”

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