“What’s striking now, there is no Republican appointee on the Court who is a Democrat,” says Richard Epstein, an influential libertarian legal scholar now at New York University. “The political alignments are there. What we have now is completely theorized disagreement. It’s a formula for sharp division on major cases. No matter what they do, they’re going to run into heat on every issue of importance, no matter how they decide the case.”
Roberts is a keen enough observer of history and politics to realize that such divisions weaken the Court’s standing, in the eyes of both the public and the legal establishment. You could argue that the institution has never quite recovered from its most famous—or infamous—5-4 split, the one in Bush v. Gore that installed Roberts’s benefactor in the White House. In a continuum where precedent ostensibly trumps all, little these days feels certain. Another body on either side could tip the scale.
“Sometimes three yards and a cloud of dust is better than a long bomb.”—Douglas Kendall, Constitutional Accountability Center
It’s also a Court that is showing, more and more, the influences of the outside world, of the constant chatter that fills the political sphere. During the health care arguments, Scalia brandished what might be termed Fox News bullet points, citing long-standing GOP arguments that the individual mandate was akin to forcing Americans to eat broccoli and referencing the “Cornhusker Kickback,” a term invented by Republicans to describe a deal offered to Sen. Ben Nelson, D-Neb., to persuade him to support the bill. The notoriously irascible justice, who last week granted an extended interview to CNN to promote his latest book, has become a sort of media celebrity, a folk hero. When the Court handed down its decision in the Arizona case last month, Scalia read a statement from the bench that decried Obama’s newly announced policy on the children of illegal immigrants—even though that policy had nothing to do with the issues in the case.
Late last year, on the day the Court decided whether to take up the health care case, Scalia and Thomas, whose wife briefly became a prominent tea party activist, were feted at a conservative dinner sponsored by a law firm that represented plaintiffs in the case. Alito, too, has been known to lace his writings with tea party-flavored rhetoric—and was the justice who mouthed “Not true” as Obama criticized the Citizens United ruling during his State of the Union address two years ago. On the left, Breyer also writes books and frequently grants TV interviews, and Sonia Sotomayor just signed a hefty contract for a memoir.
The explicit divide on the Court, along with its growing media profile, has contributed to a steady drop in public approval. But Richard Pildes, a law professor at New York University, contends that it would be mistake to presume that public sentiment would serve as a check on the conservative agenda. In Pildes’s view, the Citizens United decision proved that the justices on the right were willing to suffer the consequences of a backlash.
“When a majority of the Court believes in matters of deep constitutional conviction or principle that they’ve held for many years, they will issue decisions that may be very unpopular,” Pildes says. “And the modern Court especially is not intimidated against doing that.”
Keep that in mind as next year’s term unfolds. The justices will hear a challenge out of Alabama to the Voting Rights Act, a law passed to ensure equal access for African-Americans and other minorities at the polls, that requires Southern states with a documented history of racial discrimination to apply to the federal government for permission to alter their election procedures. The Court will also hear a challenge to affirmative-action programs at the University of Texas.
Same-sex marriage could also land on the docket, as the justices might review California’s Proposition 8, which bars the practice, or the Defense of Marriage Act, which Congress passed to deny same-sex couples federal benefits that inure to married couples. The justices could also have a chance to consider the constitutionality of voter-identification laws and whether the disparate-impact theory applies to federal housing programs.
In other words, Roberts will have a chance to rehabilitate his image among his conservative critics. Striking down affirmative action in college admissions would be a start; his distaste for racial preferences is well established. “The Texas case will be a harbinger of whether Roberts has become a genuine swing justice,” Bolick says. “He’s given no indication that he’s been shaky on this issue at all.”
And if the Court also abolishes the bulk of the Voting Rights Act or upholds Proposition 8, Roberts’s endorsement of Obamacare may become a fleeting memory.
In fact, several legal commentators have suggested that in upholding the health care law, Roberts was playing a game befitting someone who, at just 57, could be overseeing the high court for 20 or 30 years to come, that the chief, by appearing to be less than doctrinaire, has given himself some maneuvering room down the road to join opinions that could fundamentally alter the legal firmament. “He’s a chief justice with a long view, who realizes that sometime three yards and a cloud of dust is better than a long bomb in moving the ball in a conservative direction,” Kendall says. “Sometimes the smartest way of doing it is to back off a little bit.”
Should Romney win in November and should Kennedy, 76, or Ginsburg, 79, retire, the Republican president would have a chance to reshape the Court and push it even further to the right. That could lead to attacks on all sorts of expressions of congressional power, from Dodd-Frank, to the Americans With Disabilities Act or the Family and Medical Leave Act, to health and safety standards. It could even lead to the holy grail for social conservatives: overturning Roe v. Wade, the ruling that protected abortion as a constitutional right. From there, embracing the doctrines of the Lochner era doesn’t seem like that much of a stretch.
In other words, John Roberts is not a fool. Or a traitor. Or a liberal. He knows what he is doing—and he’s going to be doing it for a long, long time. Underestimate him at your peril.
This article appears in the July 28, 2012, edition of National Journal.
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