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.
A DIFFERENT COURT
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.
“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 Buffalo, N.Y.-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.