Federal Courts and Nominations

Cover Story: Tipping the Scales

He doesn’t look the part of a revolutionary, and he may be anathema to conservatives at the moment, but Chief Justice John Roberts is on course to fundamentally alter the legal firmament.

By James Oliphant


John Roberts is not a fool.


Nor is the chief justice of the United States a closet liberal, a rank opportunist, a political animal, a consummate deal-maker, a turncoat, a sellout, a coward, an Obama-lover, a pod person, or the secret love child of Earl Warren.


A month after he shocked lawyers, pundits, and the press by single-handedly rescuing the Democratic health care insurance overhaul, known forevermore as “Obamacare,” from near-certain doom, Roberts remains monstrously unpopular with conservatives. His approval ratings have dropped so precipitously among the Right (and have correspondingly soared among the Left) that he could serve as a celebrity endorser for Dramamine. He’s been disowned by presumed GOP presidential nominee Mitt Romney, who, like a disappointed kid ripping the poster of a fallen athlete hero from the wall, wiped any mention from Roberts from his campaign website. One prominent conservative law professor even suggested on Fox News that Roberts lacked “judicial fortitude” and should resign.


It didn’t help matters that a CBS News report asserted that Roberts had switched his vote to uphold the Affordable Care Act after initially siding with his conservative brethren, who sought to strike it from the books in its entirety. The implication was that Roberts, fearful of damage to the Court’s institutional reputation, made a calculation born of politics, not law. The story exacerbated the gulf between Roberts and the Right, which increasingly has begun to view the man whom President Bush appointed to the high court’s top job seven years ago as someone who cannot be trusted.


“The legacy of the Roberts Court has been severely tarnished by this decision,” contends Randy Barnett, a law professor at Georgetown University. “It’s going to take years for the stain on the reputation on this Court to fade.”


Barnett was a central figure in the massive, multistate legal challenge to the health care law, a conservative libertarian whose theories had long been ignored or mocked by the mainstream legal intelligentsia. He has singularly condemned the outcome in the case for weeks, but ask him if he sees a silver lining in the Court’s decision, and his tone brightens considerably. “It was a big win on the constitutional issues that we raised. [The plaintiffs] managed to do something that no one thought was possible,” he says. “We may have lost, but we definitely won on the Constitution.”


Understand this. Barnett’s interpretation of the Constitution isn’t the one that has guided jurisprudence in this country for more than 70 years, the one that helped shape the modern, sprawling American state, with its large-scale entitlement programs, its expansive federal regulatory net, and its brawny Congress. No, Barnett’s view is one that puts strict limits on the federal government’s power, one where the Constitution protects economic liberty as a civil right, and one that, in a sense, flips the calendar back to the nation’s Gilded Age.


Once confined to the fringes of legal thought, Barnett and his philosophical allies are part of a wave of scholars who are now thinking big, dreaming of upending the natural order of things. And paradoxically perhaps, the Supreme Court’s health care decision has provided them with unprecedented hope. On the other side of the spectrum, even as some liberal advocates celebrated the health care law’s survival, others viewed the decision with more suspicion. “It certainly signals there is a dangerous zone,” says Caroline Fredrickson of the American Constitution Society. “People who really believe that the United States should be a functioning country with a government that can address problems should be very concerned.”


[Print pullout quote: “I think conservatives have been emboldened.”—Caroline Fredrickson, American Constitution Society]


Hyperbole? Or an early-warning siren? Right now, it’s hard to tell. But those who are dedicated to using the courts to roll back the government’s reach aren’t too different, really, from the wave of tea partiers who helped turn the tide in the 2010 elections, or from the Paul Ryans of the world who want to starve the treasury of revenue and to transfer power from Washington to the states or the private sector.


Indeed, the conservative wing’s political and judicial spheres seem as aligned as they ever have been in modern times. It’s a world in which Republican state attorneys general band together to try to take down a statute such as the Affordable Care Act, or where Supreme Court justices cite Fox News talking points from the bench. No wonder the public increasingly views the high court with skepticism, as not all that different from Congress or the White House, a bastion of partisan infighting that accomplishes little of lasting import.


Whether any of this echoed through John Roberts’s mind as he deliberated the fate of the health care law is impossible to know. He decamped to the Mediterranean after the term ended and hasn’t been heard from since. But Washington’s denizens, as well as legal advocates across the country on the left and the right, have spent weeks striving to psychoanalyze the chief in an attempt to discern the path he might follow in the future. Will Roberts, as he has for several terms, serve as a solid, reliable conservative vote in a continuing effort to bring down the legal scaffolding erected by his high court predecessors? Or when pushed to the test, will he, as more than one critic has fretted, become the bench’s newest swing vote?


Roberts sits in the driver’s seat for the conservative legal revolution, but the question presented by the health care decision is whether his foot is on the pedal or the brake.




It’s a cliché, yes, but still it may legitimately seem—given the close contest between President Obama and Romney, the bitterly divided Congress, and the polarized, cable-news-channel-powered electorate—that the nation stands at a crossroads. So true is this for the Supreme Court. For more than 30 years, since the age of Reagan when Roberts’s mentor, William Rehnquist, became the chief justice, a cadre of conservative justices has sought to steadily chip away at the modern, center-left legal state. To a large extent, this effort has failed, frustrated by the Court’s liberal bloc and centrist swing votes, such as Justices Sandra Day O’Connor and Anthony Kennedy.


But when Roberts succeeded Rehnquist and Samuel Alito took O’Connor’s place, the Court’s tone, tenor, and approach began to shift increasingly toward the right. A New York Times analysis two years ago found the Roberts Court to be the most conservative in recent history.


Somewhat forgotten in the paroxysms over the health care decision is that Roberts has been a key player in the Court’s rightward march. He was, of course, part of the majority in the Citizens United v. Federal Election Commission decision, which freed corporations, unions, and individuals to pour massive amounts of cash into political campaigns, an outcome that the Obama administration has repeatedly vilified. Although Kennedy penned that decision, Roberts wrote another highly controversial campaign finance opinion that loosed the restrictions on so-called issue ads. He also stood with the conservative bloc when it unequivocally established a right to own a handgun under the Second Amendment.


[Print pullout quote: “We may have lost, but we definitely won on the Constitution.”—Randy Barnett, Georgetown University law professor]


Roberts has been a member of conservative majorities that have rolled back protections of abortion rights and limited women’s right to sue for employment discrimination and for equal-pay violations. He supported restricting the right to sue when the government is accused of favoring one religion over another. His Court has shown hostility to environmental regulation. It sided with big business in forcing consumers to arbitrate their disputes with corporations rather than litigate them. And it has limited the rights of criminal defendants, including during the last term when a decision that Roberts wrote narrowed the reach of the Constitution’s double-jeopardy clause.


For the most part, Roberts has not been the engine powering these decisions, but frequently, when circumstances have warranted, he has gone with the flow—and as chief, he decides who writes the opinion for the majority, which often dictates the precedential scope of the ruling. The health care decision, along with Roberts’s vote to side with Kennedy and the four liberal justices in the challenge to Arizona’s tough immigration law, were front-page news chiefly because of the rarity of a Roberts defection.


Troubling to liberals, as well, is the way the Roberts Court has been going about its business. In a lengthy New Yorker piece earlier this year, Jeffrey Toobin documented how, initially, the Court was to decide the Citizens United case in a relatively narrow manner, with limited applicability, but once Roberts realized he had the votes for a fundamental recalibration of the nation’s campaign finance regime, he scheduled the case for a second oral argument and paved the way for a sweeping, game-changing decision.


Citizens United was part of a pattern that critics see in the Roberts Court: Its propensity for taking on questions and issues wider than those the case initially presents and its willingness to accept cases for argument on issues seemingly settled by precedent. (Indeed, in the upcoming term, the Court will hear a challenge to the use of racial preferences in college admissions, after endorsing the use of such factors as recently as 2003.)


If that doesn’t square with the Roberts of his 2005 confirmation hearing, where he famously compared himself to an umpire, or with the image he presented in the health care ruling of someone who prefers to split the difference, that’s because the chief resists archetypical definition. A creature of the Washington establishment who was a lawyer in the Reagan and George H.W. Bush administrations, the Indiana-born Roberts doesn’t fit the mold of a revolutionary. But he will scale the battlements on issues that matter to him. “There is a difference between judicial restraint and judicial abdication,” he wrote in a concurrence in the Citizens United case.


Yet, there are also moments, as in the health care case, where Roberts hasn’t gone as far as some of the fire-breathers on his Court have wanted to go. In 2009, he guided the justices to a narrow result that upheld provisions of the Voting Rights Act that have long been anathema to conservatives. In that same term, his Court resisted eliminating the “disparate impact” test in racial-discrimination cases, in a highly publicized case of white Connecticut firefighters who were passed over for promotion. (But, again, given the proclivities of his Court to revisit hot-button issues, Roberts could have another opportunity to pass judgment on both these areas in the next term.)


“Chief Justice Roberts is not a true believer,” says Douglas Kendall of the left-leaning Constitutional Accountability Center. “He’s not an adamant force in reducing the powers of the federal government.”


Roberts’s self-described criteria for action—the line between judicial “restraint” and “abdication”; the tension between his Midwestern pragmatism and his conservative radicalism—is what makes him among the most inscrutable of justices and explains in part why the health care ruling confounded so many. After seven years, Roberts’s admirers and his detractors may think they know him, only to be reminded in capital letters that they don’t.




The health care decision, in fact, laid bare both sides of the chief justice. His hostility to the health care law shines through to the extent that his vote to uphold it remains jarring. In agreeing that the requirement that all Americans purchase health insurance is valid under Congress’s taxing power, Roberts couldn’t resist poking at it anyway. “Because the Constitution permits such a tax,” he wrote, “it is not our role to forbid it, or to pass upon its wisdom or fairness.”


The language was not just a sop to conservatives, whom Roberts had to know would feel betrayed. The rest of his opinion more than made up for the validation of Obama’s health care program. (And Roberts perhaps trusted that voters may end up punishing Democrats at the ballot box as a result of his defining the individual mandate as a “tax.”) Despite upholding the law, Roberts found the mandate invalid under the Constitution’s commerce clause—agreeing with the other four conservatives on the Court, as well as Barnett and like-minded opponents.


It was, Barnett says, “a five-justice commitment to the idea that the commerce clause has limits, that the Court will enforce those limits, and that this particular mandate was beyond those limits.”


Congress has used the clause to justify all manner of economic regulation—to the point where the prevailing view since the 1930s was that as long as a federal law or rule had some tangential relationship to the marketplace, it was legal. The Rehnquist Court poked some holes in the doctrine, but the health care opinion marks the first time that the Court has placed an outer marker in matters that clearly relate to the economy.


“Five years ago, if you had predicted that a federal health care law would be held in violation of the commerce clause, I think the typical reaction among mainstream legal scholars would be derisive laughter,” says Clint Bolick, a conservative litigator with the Hoover Institution.


Justice Ruth Bader Ginsburg, who led the liberals in dissent (even as she joined Roberts’s opinion on tax grounds), wrote a blistering critique of the chief’s views. Roberts’s “rigid reading of the commerce clause,” she said, “makes scant sense and is stunningly retrogressive.”


To some observers, the sturm und drang seemed unwarranted. It’s difficult to envision a situation similar to the one presented by the health care law, under which the government compels the purchase of a private product—so it would seem that Roberts’s outer boundary isn’t much of one at all. But, clearly, Ginsburg believed that something was afoot. The Court’s ranking liberal understood that Roberts, along with Kennedy, Alito, Antonin Scalia, and Clarence Thomas, were drawing ever closer to conservatives’ cherished goal of employing a revised view of the commerce clause to strike down a host of federal regulations, and perhaps even providing a template for some future Court to abolish Medicare or Social Security.


“It was a small case from a doctrinal standpoint, a huge case from a worldview standpoint,” Barnett says. “And worldviews are more important to explain the Supreme Court going forward.”


A future Court “could seize upon” the language, Kendall says. He calls the dissent that Scalia, Thomas, Kennedy, and Alito filed in the case—which Roberts implicitly endorsed—“as pure a statement of revolution as you can find.”


In its next term, the Supreme Court will hear challenges to both the Voting Rights Act and affirmative-action programs.


There was more. As part of the decision, Roberts persuaded six justices, including liberals Stephen Breyer and Elena Kagan, to place a cap on Congress’s spending powers, ruling that the government could not use the threat of holding back federal funds to force states into going along with programs like the health care law’s significant expansion of Medicaid.


“It’s the first time in history a Court has found a spending condition to be coercive,” says John Elwood, a Washington litigator and an expert on the Constitution’s spending clause. “That’s big news.”


Many legal experts say that the Medicaid portion of the opinion will prove to be the decision’s greatest legacy. Elwood believes that it could ultimately be used to attack federal education or highway-spending programs. Others think that the opinion has rendered the Clean Air Act vulnerable.


The massive health care challenge—and the near victory—has spilled blood into the water. Michael Greve, a libertarian scholar at the American Enterprise Institute, says that in the past few years, lawyers like him have found an increasing number of allies determined to shake the anti-Washington tree. “I think the movement—it has changed quite substantially,” Greve says. “There are a lot more players. There’s a lot more money from new and different sources sloshing around. And there’s a lot more energy to it.”


This month, a Texas bank backed by the Competitive Enterprise Institute and 60 Plus, a conservative nonprofit that advocates, among other things, partially privatizing Social Security, sued the Treasury Department, arguing that the Dodd-Frank Act that slapped new controls on the financial-services industry is unconstitutional. Their argument is not based on the commerce clause but on the principle of separation of powers; in essence, they say that the act’s Consumer Financial Protection Bureau is unaccountable to either the executive branch or Congress. But there’s no doubt that the current environment has emboldened plaintiffs. They believe that if their case reaches the high court, the chief justice will be on their side.


“Before the Obamacare decision, I would have looked at Justice Roberts,” says Sam Kazman, CEI’s president. “I still look to him on this issue as being a good prospect for advancing the law.”


For some (but certainly not all) conservatives, the long-range goal is to return to an America that existed before Franklin Roosevelt’s New Deal, when the high court protected business against the impingement of federal regulation. Back then, the justices looked to the Constitution to guarantee “economic liberty” and the protection of private property. In a long-infamous 1905 decision, Lochner v. New York, the Court struck down workplace-safety regulations as infringing on a “right to contract.” A conservative-leaning Court would go on to invalidate many of Roosevelt’s Depression-era programs until the balance of power on the bench shifted in 1937.


Although it might sound fanciful, a judge on D.C.’s influential U.S. Court of Appeals reached back to Lochner earlier this year while dissenting in a case centered on the federal regulation of milk.


“America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s,” wrote Judge Janice Rogers Brown. “First, the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote public welfare. Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the ‘democratic process.’ ”


Brown, whom George W. Bush appointed to the Appellate Court, could conceivably be on Mitt Romney’s short list for the high court.


“We would have laughed about that last year or the year before—the idea that Lochner is walking the streets again,” says the American Constitution Society’s Fredrickson. “I think conservatives have been emboldened, and they are talking about that—that doctrine of property rights trumping all. The implications of that are extraordinary.”




Should CEI’s Dodd-Frank challenge reach the justices, it will find a Court as polarized as the legislature that sits across First Street NE. The nine-member body has always been an amalgam of jurists from across the political and philosophical spectrum, but the steady churn in Washington politics has produced a Court that, for the first time in modern history, is cleaved into distinct, warring camps. Republican presidents appointed Roberts and the four conservatives; Democrats selected Ginsburg and her three liberal allies. The judicial vetting process produces fewer and fewer wild cards; fewer fence-straddlers; fewer Byron Whites, Lewis Powells, O’Connors, and Kennedys. As a result, the score on difficult cases, time and again, is 5-4, 5-4, 5-4.


“What’s striking now, there is no Republican appointee on the Court who is a Democrat,” says Richard Epstein, an influential libertarian legal scholar now at New York University. “The political alignments are there. What we have now is completely theorized disagreement. It’s a formula for sharp division on major cases. No matter what they do, they’re going to run into heat on every issue of importance, no matter how they decide the case.”


Roberts is a keen enough observer of history and politics to realize that such divisions weaken the Court’s standing, in the eyes of both the public and the legal establishment. You could argue that the institution has never quite recovered from its most famous—or infamous—5-4 split, the one in Bush v. Gore that installed Roberts’s benefactor in the White House. In a continuum where precedent ostensibly trumps all, little these days feels certain. Another body on either side could tip the scale.


[Print pullout quote: “Sometimes three yards and a cloud of dust is better than a long bomb.”—Douglas Kendall, Constitutional Accountability Center]


It’s also a Court that is showing, more and more, the influences of the outside world, of the constant chatter that fills the political sphere. During the health care arguments, Scalia brandished what might be termed Fox News bullet points, citing long-standing GOP arguments that the individual mandate was akin to forcing Americans to eat broccoli and referencing the “Cornhusker Kickback,” a term invented by Republicans to describe a deal offered to Sen. Ben Nelson, D-Neb., to persuade him to support the bill. The notoriously irascible justice, who last week granted an extended interview to CNN to promote his latest book, has become a sort of media celebrity, a folk hero. When the Court handed down its decision in the Arizona case last month, Scalia read a statement from the bench that decried Obama’s newly announced policy on the children of illegal immigrants—even though that policy had nothing to do with the issues in the case.


Late last year, on the day the Court decided whether to take up the health care case, Scalia and Thomas, whose wife briefly became a prominent tea party activist, were feted at a conservative dinner sponsored by a law firm that represented plaintiffs in the case. Alito, too, has been known to lace his writings with tea party-flavored rhetoric—and was the justice who mouthed “Not true” as Obama criticized the Citizens United ruling during his State of the Union address two years ago. On the left, Breyer also writes books and frequently grants TV interviews, and Sonia Sotomayor just signed a hefty contract for a memoir.


The explicit divide on the Court, along with its growing media profile, has contributed to a steady drop in public approval. But Richard Pildes, a law professor at New York University, contends that it would be mistake to presume that public sentiment would serve as a check on the conservative agenda. In Pildes’s view, the Citizens United decision proved that the justices on the right were willing to suffer the consequences of a backlash.


“When a majority of the Court believes in matters of deep constitutional conviction or principle that they’ve held for many years, they will issue decisions that may be very unpopular,” Pildes says. “And the modern Court especially is not intimidated against doing that.”


Keep that in mind as next year’s term unfolds. The justices will hear a challenge out of Alabama to the Voting Rights Act, a law passed to ensure equal access for African-Americans and other minorities at the polls, that requires Southern states with a documented history of racial discrimination to apply to the federal government for permission to alter their election procedures. The Court will also hear a challenge to affirmative-action programs at the University of Texas.


Same-sex marriage could also land on the docket, as the justices might review California’s Proposition 8, which bars the practice, or the Defense of Marriage Act, which Congress passed to deny same-sex couples federal benefits that inure to married couples. The justices could also have a chance to consider the constitutionality of voter-identification laws and whether the disparate-impact theory applies to federal housing programs.


In other words, Roberts will have a chance to rehabilitate his image among his conservative critics. Striking down affirmative action in college admissions would be a start; his distaste for racial preferences is well established. “The Texas case will be a harbinger of whether Roberts has become a genuine swing justice,” Bolick says. “He’s given no indication that he’s been shaky on this issue at all.”


And if the Court also abolishes the bulk of the Voting Rights Act or upholds Proposition 8, Roberts’s endorsement of Obamacare may become a fleeting memory.


In fact, several legal commentators have suggested that in upholding the health care law, Roberts was playing a game befitting someone who, at just 57, could be overseeing the high court for 20 or 30 years to come, that the chief, by appearing to be less than doctrinaire, has given himself some maneuvering room down the road to join opinions that could fundamentally alter the legal firmament. “He’s a chief justice with a long view, who realizes that sometimes three yards and a cloud of dust is better than a long bomb in moving the ball in a conservative direction,” Kendall says. “Sometimes the smartest way of doing it is to back off a little bit.”


Should Romney win in November and should Kennedy, 76, or Ginsburg, 79, retire, the Republican president would have a chance to reshape the Court and push it even further to the right. That could lead to attacks on all sorts of expressions of congressional power, from Dodd-Frank, to the Americans With Disabilities Act or the Family and Medical Leave Act, to health and safety standards. It could even lead to the holy grail for social conservatives: overturning Roe v. Wade, the ruling that protected abortion as a constitutional right. From there, embracing the doctrines of the Lochner era doesn’t seem like that much of a stretch.


In other words, John Roberts is not a fool. Or a traitor. Or a liberal. He knows what he is doing—and he’s going to be doing it for a long, long time. Underestimate him at your peril. 

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