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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.

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Charting his own course: John Roberts(AP Photo/Lawrence Jackson)

CORRECTION: An earlier version of this article misstated the birthplace of John Roberts; he was born in Buffalo, N.Y.

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.”

 

 

“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.

Infographic

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?

This article appears in the July 28, 2012 edition of National Journal Magazine.

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