Civil and Human Rights

Roberts Reunites High Court Majority After Obamacare Vote

By Greg Stohr 


The U.S. Supreme Court’s conservative majority is back to being the conservative majority. 


Two years after the court upheld President Barack Obama’s health-care law and a year after it bolstered gay rights, the five Republican-appointed justices are voting together again in the highest-profile cases. 


In recent weeks that group, led by Chief Justice John Roberts, has joined to loosen campaign-finance limits, back government-sponsored prayer and let states ban racial preferences. Now, as the court enters the final month-and-a-half of its term, those justices may unite in cases involving contraception, abortion protests and separation of powers. 


“When he’s got the votes, it seems Roberts can move the law exactly as quickly as he wants,” said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center and a frequent critic of the Roberts court.


Roberts, 59, now in his ninth year as chief justice, has presided over legal shifts on a host of issues. The court has jettisoned longstanding legal protections for racial minorities; allowed unlimited corporate and union spending on political campaigns; given companies more power to force arbitration of consumer and employee grievances; and shifted power away from the federal government to the states. 


For the most part, those rulings featured the same five-justice majority on the nine-member court: Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. 


Trend Continues 


The court’s biggest decisions this term are furthering that trend. This month the five Republican-appointed justices formed the majority to say the Constitution lets town councils start most meetings with a Christian prayer. 


The same five earlier this year overturned limits on the total amount donors can give to federal candidates and parties. Along with Justice Stephen Breyer, a Democratic appointee, they upheld a voter-approved ban on racial preferences at Michigan’s public universities. 


As has been the hallmark of the Roberts court, the majority in each case stopped short of directly overturning a precedent. That approach has given Roberts court rulings an “ephemeral” quality in many areas of the law, according to Brian Fitzpatrick, a professor at Vanderbilt Law School in Nashville. 


“It’d be much more lasting if they’d just overturn some precedents now and again,” Fitzpatrick said. “It’s moved fairly slowly.” 


Democratic Appointees 


This term’s cases underscore another theme of the Roberts court: The Democratic appointees aren’t necessarily liberal by historical standards. 


Take the prayer case. While the four Democratic justices dissented, they also said the court was correct in 1983 when it upheld at least nonsectarian prayer at the beginning of legislative sessions. By contrast, in 1983 Justices William Brennan and Thurgood Marshall said all legislative prayer was unconstitutional, calling for “strict separation of religion and state.” 


In another case still to be decided affecting Obama’s health-care law, the Democratic appointees may reject a core part of the administration’s argument. The issue is whether for-profit corporations can claim a religious exemption from the Affordable Care Act’s requirement that they cover birth control in employee health plans. 


The administration contends that for-profit corporations can’t assert religious rights at all. During a hearing in March, it got little traction on that position, and the court might unanimously reject the administration’s view, said Marty Lederman, a professor at Georgetown University Law Center in Washington. 


Clear Path 


“On the threshold question, it’s pretty clear where the court is going,” Lederman said. Such a rebuff wouldn’t necessarily mean the administration would lose the case, though it would have to justify any intrusion on a corporation’s religious rights. 


Two other constitutional cases may divide the court along ideological lines — or at least unite the Republican appointees. In one, the court will rule on a Massachusetts law that put a 35-foot buffer zone around abortion clinic entrances. 


In the other, the justices are considering putting new limits on the federal government’s power. The case concerns a woman who was prosecuted under a U.S. chemical-weapons law for trying to poison her husband’s lover. 


The court is scheduled to finish its term by late June or early July. 


Escaping Notice 


So far the direction of the Roberts court has largely escaped public attention. In a survey released May 6 by the Pew Research Center, 31 percent of those responding called the court “liberal,” compared with 25 percent who labeled it “conservative.” 


The perception comes at least in part from the blockbuster exceptions in the last two terms — health care and gay marriage. Roberts joined the four Democratic appointees in 2012 to uphold Obamacare and its requirement that Americans either buy insurance or pay a tax, salvaging the president’s biggest domestic initiative. Last year, Kennedy provided the fifth vote to strike down a law that denied federal benefits to married gay couples. 


The health-care case especially resonated with Republicans, with the number expressing a favorable view of the court dropping 18 percentage points following the decision, said Carroll Doherty, Pew’s director of political research. 


“That was a breakthrough decision,” Doherty said. “Not every decision moves the needle in that way.” 

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