Federal Courts and Nominations

From Chief Justice Roberts, a liberal dose of independence

By Richard Wolf


WASHINGTON — When Chief Justice John Roberts joined the Supreme Court’s four more liberal justices in a campaign-financing decision last week, it was reminiscent of a similarly unusual alignment three years earlier.


That’s when Roberts, in perhaps the most controversial action he has taken in nearly 10 years on the court, crafted the 5-4 ruling that preserved President Obama’s fledgling health care law — and incurred the wrath of conservatives who had heralded his nomination in 2005.


The latest case wasn’t as consequential, but it served notice that Roberts remains his own man on the court, willing to form majorities with justices to his right or left. That inclination will be watched closely this spring in major cases on same-sex marriage and, once again, Obamacare.


“The signs thus far point to something that we have seen emerging over the past few years — that the chief justice is truly fashioning the court into his own image,” says former acting U.S. solicitor general Neal Katyal, who runs the appellate practice at the law firm Hogan Lovells, formerly run by Roberts. “There is less ideology and more unanimity.”


The blurred ideology has been most noticeable so far this term: Roberts has voted with the liberal justices more often than the conservatives. He has agreed with Stephen Breyer in 90% of the court’s judgments and with Ruth Bader Ginsburg in 87%, according to statistics kept by Scotusblog. The level of accord drops to 79% with Antonin Scalia and 67% with Clarence Thomas.


Conservative legal analysts aren’t surprised by Roberts’ independence. “Many conservatives have discerned from the beginning that Roberts is not exactly where Scalia is on a whole host of matters,” says Ed Whalen, president of the Ethics and Public Policy Center.


In 18 cases with divided opinions this term, Roberts has sided seven times with most of the liberals against most of the conservatives. Among them:


• Williams-Yulee v. The Florida Bar: Roberts wrote the 5-4 decision upholding rules in 30 states that bar judicial candidates from directly soliciting donations. Until then, he had been a firm opponent of campaign finance restrictions; he wrote last year’s decision striking down federal limits on the aggregate amount wealthy donors can give to candidates and political parties.


• Young v. United Parcel Service: The chief justice sided with the four liberal justices in a 6-3 ruling that said companies cannot deny physical accommodations to pregnant workers if they are made available to many other workers with similar restrictions. Justice Samuel Alito filed a separate concurring opinion. 


• Yates v. United States: In a 5-4 vote, Roberts agreed with Ginsburg, Breyer and Sonia Sotomayor that the federal government went too far by prosecuting a hapless Florida fisherman under a criminal law that targets white-collar destruction of evidence. “You make him sound like a Mob boss or something,” Roberts told the government’s lawyer during oral arguments. Alito concurred in a separate opinion.


• North Carolina Board of Dental Examiners v. Federal Trade Commission: Here the chief justice took the government’s side in a 6-3 ruling that said a state board dominated by dentists could not exclude non-dentists from the business of teeth whitening. Justice Anthony Kennedy was the only other conservative to join the majority.


• Rodriguez v. United States: Roberts, along with Scalia, joined the four liberals in denying police the freedom to detain drivers during traffic stops in order to search for drugs using police dogs. It was a victory for privacy groups and a defeat for law enforcement.


The trend has triggered two types of speculation: that Roberts has moderated his views over the years, or that he has the court’s broader reputation in mind. “Conservatives Fear John Roberts Going Soft,” read a Politico headline as the current term opened last October. A more recent column in The New Republic asked, “Is John Roberts Drifting Left?”


“Roberts’ record remains very conservative, but he’s clearly becoming less predictably conservative in some key areas, and his votes this term underscore that,” says Brianne Gorod, appellate counsel at the liberal Constitutional Accountability Center.


“It’s impossible to say what accounts for this trend, but if it continues, it will certainly support Roberts’ claim that he believes, and wants the public to believe, that the justices are above partisan politics and decide cases based on the law, not politics.”


Pushing against that school of thought is another that says Roberts remains fully in control of a court The New York Times in 2010 labeled the “most conservative in decades.” On most major cases, from the Citizens United decision in 2010 unleashing independent campaign spending by corporations to his own 2013 opinion striking down a key part of the Voting Rights Act, he has upheld conservative principles.


Two huge tests await this term. Roberts could be the key vote in the latest challenge to Obama’s health care law, which threatens the federal subsidies that make insurance affordable to most participants. And he must decide whether to join or oppose a ruling that is likely to expand same-sex marriage, possibly nationwide; two years ago, he was in the conservative minority voting to uphold the Defense of Marriage Act.


Conservatives remain cautiously optimistic. “There are the same concerns being voiced about him now in the marriage case that were voiced in the DoMA case, and he wrote an excellent opinion there,” Whalen says.


Liberals see a moderate in the making. “No one expects the biggest decisions of the term … to be unanimous,” Katyal says. “But the chief is using his considerable powers of persuasion to steer the court toward greater consensus in the other cases.”

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