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Roberts Faces Shot at Republican Redemption in Race Cases

July 05, 2012

Roberts Faces Shot at Republican Redemption in Race Cases

The justices of the U.S. Supreme Court pose for their official photo in Washington, D.C. Photographer: Dennis Brack/Bloomberg

Chief Justice John Roberts, whose deciding vote upheld President Barack Obama’s health-care law, won’t have to wait long for a chance to reassert his conservative credentials.

In the nine-month term that starts in October, the U.S. Supreme Court will consider rolling back university affirmative action and may take up same-sex marriage and the Voting Rights Act, the 1965 law that protects minorities at the polling place.

On the race issues in particular, Roberts is a good bet to rejoin the wing of the court that has been his ideological home since he became chief justice in 2005. He has taken a leading role on such questions, pushing for a color-blind Constitution.

“With respect to race, I don’t think Chief Justice Roberts will have the same hesitation to advance a conservative agenda,” said Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania Law School in Philadelphia.

Opponents of the Patient Protection and Affordable Care Act criticized Roberts for joining with the court’s four Democratic appointees to uphold the health-care law. Roberts, 57, was accused of “arrogance” by columnist Michael Gerson and “judicial betrayal” by economist Thomas Sowell. The Wall Street Journal said in an editorial that the chief justice “behaved like a politician.”

Outside Pressure

The criticism escalated after CBS News, citing two unnamed people, said Roberts originally voted to strike down the part of the law that requires Americans to get insurance -- an idea once championed by the Heritage Foundation and leading Republicans -- then switched sides during the court’s internal deliberations.

That led to speculation among some Republicans that the chief justice had buckled under pressure from supporters of the law, which is intended to expand coverage to at least 30 million uninsured Americans.

Some commentators, including Charles Krauthammer and George Will, praised Roberts for parts of his opinion that may limit Congress’ power in the future.

Even so, the ruling has left some legal conservatives questioning Roberts’ reliability on other issues. The decision came three days after he joined a 5-3 majority to strike down most of an Arizona law designed to crack down on illegal immigrants.

“If the political winds pick up to a certain high-storm level, his views on the law or on the constitutionality seem to get second billing,” said John Eastman, a constitutional law professor at Chapman University School of Law in Orange, California. After health care, “it’s hard to predict where he comes down on any given case.”

Steady on Race

Roberts, who is in Malta on a two-week teaching trip, didn’t respond to a request for comment.

The justices also will consider shielding multinational companies, including Royal Dutch Shell Plc (RDSA), from lawsuits accusing them of complicity in human-rights abuses. They’ll determine whether the Alien Tort Statute, a 223-year-old law, can be invoked for wrongdoing that occurs beyond U.S. borders.

Nowhere has Roberts been steadier than on issues of race. He has consistently allied with other Republican-appointed members -- Justices Antonin Scalia, Clarence Thomas and Samuel Alito -- leaving Justice Anthony Kennedy, another Republican appointee, to determine how far the nine-member court will go in curbing racial preferences by the government.

‘Stop Discriminating’

In the affirmative action case, the court may scale back, or even overturn, past rulings that say universities can consider the race of their applicants to help ensure campus diversity. The justices are considering an appeal from Abigail Noel Fisher, a white student who was rejected when she applied to the University of Texas’ flagship Austin campus.

For Roberts, the decision may be straightforward. In a 2007 case involving school integration at the kindergarten-to-grade- 12 level, he made clear he had no use for racial preferences in education.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote.

On the Voting Rights Act, Roberts has suggested he would invalidate the provision that makes some states get federal clearance before changing their voting rules. In 2009, he pointed to “serious constitutional questions” about the preclearance requirement, one of the central provisions in the landmark civil rights law.

The court in that case stopped short of invalidating the law, instead striking a compromise that let more jurisdictions change their election procedures without federal approval.

Foreshadowing Result

The issue is now back at the court’s doorstep. A federal appeals court upheld the law in May, rejecting a challenge by Shelby County, Alabama. The Supreme Court may say in late September or early October whether it will take up Shelby County’s appeal.

“I expect the Voting Rights Act to go down,” said Roosevelt, who served as a law clerk to now-retired Justice David Souter. “The court has foreshadowed that result, and Roberts seems to want it.”

The court probably will have its choice of cases concerning gay marriage. House Republicans led by Speaker John Boehner last month asked the justices to uphold the Defense of Marriage Act, the 1996 federal law that defines marriage as being between a man and a woman. The Obama administration is also asking the court to intervene, arguing that the law is unconstitutional.

A federal appeals court in May ruled the measure violated the constitutional guarantee of equal protection. The law, known as DOMA, bars legally married same-sex couples from claiming federal benefits, including the right to file joint tax returns and collect Social Security survivor benefits.

Swing Vote

The Supreme Court also will have a chance to review California’s Proposition 8, which bars same-sex marriage. A federal appeals court struck down the measure.

As with the race cases, past rulings suggest that Kennedy will serve as the court’s swing vote on marriage. Should Kennedy back same-sex nuptials, Roberts would be left to decide whether to take the same position, and potentially write the court’s opinion, or to dissent.

What Roberts does in that and future cases may depend on the lessons he takes from the health-care ruling and his reaction to becoming a pariah among people who were once his supporters.

Blackmun Defiant

Almost 40 years ago, another Republican appointee, Justice Harry Blackmun, found himself in a similar position after writing the landmark Roe v. Wade abortion rights decision -- and receiving hate mail and death threats. The criticism only solidified Blackmun’s views, and he became one of the court’s most liberal members, eventually calling for the abolition of the death penalty.

How Roberts will react is “ultimately unknowable,” said Michael Dorf, a constitutional law professor at Cornell Law School in Ithaca, New York.

“It’s going to be very hard to predict whether this experience makes him want to prove that he’s really still a conservative, or whether it makes him feel liberated or angry at his fellow conservatives,” Dorf said.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net.


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