Will Justice Roberts ignore politics on gay marriage and Obamacare?

It will be a big year for the U.S. Supreme Court and Chief Justice John Roberts in 2015. 


In September, Roberts celebrates his 10th anniversary as chief justice. Before he gets there, he could be deciding two of the biggest cases of his tenure so far, cases that will test his oft-avowed commitment to putting the law over politics and principle over partisanship.


He should resolve to stay true to his word to keep partisanship out of the Supreme Court.


The first of these cases is King v. Burwell, which is about the Affordable Care Act and whether individuals in 34 states who purchase their health insurance through healthcare.gov will continue to get the tax credits that help them make that purchase.


The text, purpose, and history of the statute all make clear that tax credits should be available to all qualifying Americans, regardless of where they live, but opponents of the ACA have indicated that they hope and expect to win at the Supreme Court based on politics — that is, simply because a majority of the justices were appointed by Republican presidents.


At his confirmation hearing, Roberts expressed concern that if courts are viewed “as simply an extension of the political process” it undermines their “independence and integrity.”


Early in his tenure, he explained that “keep[ing] any kind of partisan divide out of the judiciary” was a “high priority.”


He has a chance to show what he meant by that when the court hears King next year.


And in January, the court will decide whether to hear one or more cases about one of the defining legal issues of our time: whether states may ban same-sex marriage. While the issue isn’t on the court’s calendar yet, it almost certainly will be.


And when it is, it should be decided based on constitutional principle and precedent (in particular, the Court’s 1967 decision in Loving v. Virginia, which held that state laws banning interracial marriage were unconstitutional).


That’s what happened in 2013 when the court considered the constitutionality of the provision of federal law that defined marriage to be between a man and a woman.


In that case, the court, in a 5-4 decision, held that discriminating against married same-sex couples for the purpose of determining federal benefits violates the Constitution’s requirement of equality under the law.


At the time, the chief justice disagreed with the court’s decision and wrote his own opinion to explain that the court wasn’t deciding whether states could ban same-sex marriage.


But as Justice Antonin Scalia noted at the time — and almost every lower court to consider the issue has agreed since — it’s difficult to read the court’s 2013 decision as anything other than an indication of how it will decide this issue.


If that’s right, a decision recognizing the constitutional right to same-sex marriage will likely be one of the biggest legacies of the Roberts court.




This piece appeared in at least the following additional outlets:


*  The Fort Worth Star-Telegram (online)


*  The Pensacola (FL) News-Journal (online)


*  The Albany (NY) Times-Union (online)


*  The Utica (NY) Observer-Dispatch (paper only)


*  The Louisville (KY) Courier-Journal (online)