http://www.businessweek.com/articles/2014-04-10/john-roberts-leads-supreme-court-shift-to-the-right

Courts

John Roberts, Chief Conservative Strategist


Chief Justice John Roberts

Photograph by Roger L. Wollenberg/Bloomberg

Chief Justice John Roberts

(Corrects an editing error on the timing of Linda Greenhouse's employment at the New York Times in the sixth paragraph.)

For those who follow the Supreme Court, psychoanalyzing Chief Justice John Roberts is irresistible. His mild manner and measured tone baffle observers who expect bombast from conservative jurists. He refrains from Antonin Scalia’s rhetorical theatrics and Clarence Thomas’s enthusiasm for overturning precedent. He most notably shied away from a potentially explosive political confrontation in June 2012, casting the decisive vote to uphold the Affordable Care Act. That earned Roberts a barrage of invective from conservatives. In a pair of cases a year later, he whipsawed liberals who’d fantasized about a rift on the court’s right by curbing voting rights and affirmative action. His latest majority opinion, in a 5-4 decision announced on April 2 that ended decades-old restrictions on campaign contributions, provides fresh fodder for scrutiny. It also hints at the plans of a chief justice who, at 59, could remain in his powerful post for 20 years or longer.

In the April 2 decision, Roberts argued that Watergate-era limits on how much money individuals can spread around each election year, intended to thwart corruption, interfered with free speech. “Money in politics may at times seem repugnant to some,” he wrote, “but so, too, does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.” With that concise declaration, Roberts diminished the federal government’s power and increased wealthy individuals’ influence over elections. Within hours of the ruling, fundraisers were on the phones hitting up previously maxed-out donors for more cash.

A Department of Justice lawyer during the Reagan administration and a judge on the federal appeals court in Washington, Roberts ascended to the chief justice’s chair by accident. President George W. Bush chose him in mid-2005 to replace the retiring Sandra Day O’Connor. When then-Chief Justice William Rehnquist died two months later, Bush switched an already-vetted Roberts to the Rehnquist slot. Roberts delivered a self-assured performance at his Senate confirmation hearings and took office in September 2005.

The chief justice goes out of his way to project a conciliatory image. “I do think the rule of law is threatened by a steady term-by-term focus on 5-4 decisions,” he told Jeffrey Rosen, a law professor at George Washington University, in a July 2006 interview published in the Atlantic. The court was ripe for a refocus “on functioning as an institution,” Roberts added, “because if it doesn’t, it’s going to lose its credibility.” Six years later, Rosen reflected on the interview. “Roberts saw the promotion of consensus in service of the court’s long-term interests as the greatest test of a successful chief justice,” he wrote in the New Republic.

Roberts has not passed this test. With a handful of exceptions, the 5-4 split in ideologically significant cases remains persistent and profound. His stewardship over the last nine terms suggests he is less focused on consensus building than on leading an incremental, tactically savvy shift to the right.

The chief justice confused a lot of people in 2012 when he was the only conservative on the court to join the four liberal justices in voting to uphold Obamacare. In his syndicated column, Pat Buchanan accused him of employing “tortured reasoning” in the service of being “seen among the cognitive elite” (apparently an insult in Buchanan’s mind). The National Review charged that Roberts had “done violence” to the U.S. Constitution. In contrast, Linda Greenhouse, a former New York Times Supreme Court correspondent and a leading voice of the liberal cognitive elite, praised Roberts for demonstrating “evolution” as a jurist. Greenhouse, who now teaches at Yale Law School, described in positive terms Roberts’s refusal to ally himself with what she called “the breathtaking radicalism of the other four conservative justices.”

It turned out that both sides read too much into Roberts’s performance in the case. He exercised canny statesmanship to avoid a clash over Obama’s signature legislation—the sort of showdown that could have stirred a backlash against the court. Roberts accomplished this with subtle lawyering. He said Congress lacked authority under the Constitution’s Commerce Clause to impose the law’s insurance mandate but then rescued the law by declaring it passed muster as a form of taxation. Roberts’s quirky definition of the mandate as a tax likely won’t have lasting jurisprudential impact. His narrow reading of the Commerce Clause, on the other hand, could well resurface in other cases as a potent tool to undercut regulatory statutes. What many saw as a conservative defeat thus in the long run might be the opposite.

In 2013, Roberts returned to a more straightforward position as leader of the conservative wing in rulings limiting the reach of voting-rights protections and affirmative action in higher education. Now it was conservatives who praised his rigor and liberals who shook their heads. Greenhouse declared that “the real John Roberts” had revealed himself. She described his majority opinion in the voting-rights case as demonstrating a “sweeping disregard of history, precedent, and constitutional text … startling for its naked activism.” A less fraught way of describing the same decision is that the conservative justices compelled Congress to revisit the half-century-old Voting Rights Act and justify continued federal oversight of historically segregationist Southern states.

This month’s campaign-finance ruling marks another step in Roberts’s calibrated campaign to assert conservative priorities via the court. Building on the 2010 ruling in Citizens United, which struck down limits on independent campaign spending by corporations and unions, his opinion finds that the only legitimate basis for constraining campaign cash is to prevent outright greenbacks-in-the-briefcase bribery. Yet Roberts chose not to follow this line of reasoning to its logical conclusion: He declined a call by Justice Thomas in a concurring opinion to throw out the entirety of existing campaign-finance law. That task, the politically astute chief justice implied, can await another day.

Roberts’s approach sometimes annoys the most combustible of the conservatives, Justice Scalia. When the chief justice adopted a similarly incrementalist strategy in a 2007 campaign-finance case, Scalia derided the approach as “faux judicial restraint,” or even “judicial obfuscation.”

Step by step, the chief justice makes his mark. In cases yet to be decided this term, his guiding hand will likely be evident in disputes over religious invocations before legislative sessions, state constitutional amendments to ban affirmative action, and medical clinic “buffer zones” to deter anti-abortion demonstrators from pressuring women not to seek the procedure. Obamacare is back on the docket, too, in a narrower religious-liberty challenge to the requirement that employers providing health insurance make contraception coverage available. By early July it’s likely that conservatives once again will be counting their victories, as they will be for some time to come, unless a Democratic president has the opportunity to make appointments that deny Chief Justice Roberts his majority.

The bottom line: Justice Roberts has shown a conservative activism in cases on religion, racial discrimination, and campaign finance.

Barrett_190
Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, which tells the story of the Chevron oil pollution case in Ecuador, will be published by Crown in September 2014.

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