This time a year ago, the conservative chief justice whose vote saved President Obama's health care law was a figure of mystery. In fact, "The Mystery of John Roberts" was the title I gave to one of my Opinionator columns for The New York Times last summer. The right-wing blogosphere had turned on him venomously. Liberals didn't know what to make of his crucial vote, or of him. What was his game? Was he for real?
What a difference a Supreme Court term makes.
What became clear during the momentous term that ended Wednesday is that the real Chief Justice Roberts has been there all along, hiding in plain sight. We just needed to know where to look.
In the case of the Affordable Care Act, it's plain in hindsight that the real John G. Roberts Jr. was not the one who, with evident reluctance and seemingly close to the last minute, joined the court's liberals to place a taxing-power Band-Aid on the mandate's penalty provision. In his opinion, he referred unenthusiastically to that statute-saving interpretive move as a "duty."
Rather, the real John Roberts was the one who as part of that same opinion — not the part that ultimately counted — issued a full-throated condemnation of Congress's exercise of its commerce power to have enacted the mandate in the first place. "That is not the country the framers of our Constitution envisioned," he declaimed.
In saving the mandate's penalty provision as a tax, he followed his head. In denouncing the very notion that Congress might require people to buy health insurance, he followed his heart. In the term that just ended, head and heart were no longer at war.
THAT is not to say that he was always in control of the court, or that his view always prevailed. In United States v. Windsor, the decision that struck down the federal Defense of Marriage Act, he was one of four dissenters.
Windsor was one of the four late June decisions by which the term will be known, and it was in fact the only major decision out of 73 argued cases that found the chief justice on the losing side. (He dissented a total of 11 times, the lowest number among all the justices, after Justice Anthony M. Kennedy's 7.)
A significant point about the Defense of Marriage Act is that it was an anomaly among the other hot-button cases in terms of its presence on the court's docket. A federal appeals court had found DOMA unconstitutional, and while the Supreme Court has nearly complete discretion to choose the cases it wants to decide, the justices feel obliged to review a decision that has invalidated a federal statute. Granting such a case (the health care case was another) is itself a neutral act that tells nothing about the justices' appetites.
The court's action in reaching out to decide the future of voting rights in Shelby County v. Holder and affirmative action in Fisher v. University of Texas was, by contrast, an exercise of pure will, fueled by a desire to change settled law.
The decision to review Hollingsworth v. Perry, a case concerning Proposition 8, the ballot measure that banned same-sex marriage in California, may or may not fit into this category. Chief Justice Roberts wrote for the 5-to-4 majority that the opponents of same-sex marriage, who lost in the lower courts, lacked standing to appeal. It was the justices themselves who added the question of standing to the case when they accepted the appeal last December. Given the chief justice's expressed interest in tightening up the rules for standing, along with general confusion in the courts about whether sponsors of a referendum can assert the interests of a state unwilling to defend it, it's possible that the standing issue is what drove this case from the beginning.
So if there is an overarching lesson to be derived from this term, a consumer's guide to the Roberts court, it is follow the docket. The 73 cases the court decided between the beginning of last October and the end of June were selected from some 8,000 appeals. Year after year, most of that large number — prisoner appeals raising questions of fact rather than law — have little claim on the court's attention. But hundreds, certainly, present issues with which the court might fruitfully engage.
Each case the court selects, by the agreement of at least four justices, under its internal rules, is a vehicle intended to accomplish something: to clarify the law, interpret an ambiguous statute, resolve conflicting decisions among the lower courts or, as in the Shelby County and Fisher cases, to change the status quo.
His voting rights opinion was startling for its activism.
Here is where the term got interesting. In its sweeping disregard of history, precedent and constitutional text, the chief justice's 5-to-4 opinion in the voting rights case was startling for its naked activism, but no one watching the court over the past few years could have been surprised by the outcome. The court made clear in a 2009 decision that it had Section 5 of the Voting Rights Act, the "preclearance" provision, squarely in its sights. (Justice Ruth Bader Ginsburg's devastating dissenting opinion last week read to me as if major portions had been written back in 2009, rendered unnecessary by the compromise outcome then, but saved for the day that she knew was coming.)
The chief justice's antipathy toward the Voting Rights Act itself was well known, and was a significant reason that major civil rights groups opposed his confirmation to the court in 2005. Following his nomination, memos came to light that he had written more than 20 years earlier as a young lawyer in the Reagan administration.
The debate within the administration then was over whether Congress should make it clear that a violation of the Voting Rights Act did not require proof of intentional discrimination, as a 1980 Supreme Court decision had held, and that proof of a discriminatory effect should be sufficient. The looser standard, which Congress eventually adopted, would "provide a basis for the most intrusive interference imaginable by federal courts into state and local processes," John Roberts warned in a memo to Attorney General William French Smith.
Questioned at his confirmation hearing by Senator Edward M. Kennedy about his views on the Voting Rights Act, Mr. Roberts, then a judge, asserted that he had been acting at the time as a staff lawyer advising a client, but that as a judge he had an open mind.
In contrast to the voting rights decision, the University of Texas affirmative action decision was a surprise for its failure to accomplish anything of significance. It was a vehicle that never made it to the intended finish line. True, the 7-to-1 opinion vacated the lower court's ruling that had upheld the university's limited consideration of race as part of its admission plan. But Justice Kennedy's 13-page majority opinion applied what he described as existing law, from which he said the lower court had deviated.
So if the voting rights case was a mission accomplished, Fisher v. University of Texas was a mission that failed, conspicuously so, after eight months of deliberation following last October's argument. I assume there were four justices — the chief justice along with Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — who were eager to declare the Texas affirmative action plan unconstitutional, if not to upend affirmative action altogether. Justice Kennedy, presumably, couldn't be coaxed fully onboard.
The case may have played out internally as a potential repeat of one of the Roberts court's first major decisions, the Parents Involved case from 2007. In that case, which concerned racially conscious K-12 student assignment plans in districts struggling to preserve the hard-won gains of integration, Chief Justice Roberts failed to persuade Justice Kennedy to go along with a sweeping opinion declaring that preventing resegregation was not a "compelling interest" sufficient to justify a policy that took students' race into account. Rather than accommodate Justice Kennedy's more modulated view, which was that the districts' interest was compelling but the remedies they chose were too broad, the chief justice stuck to his position and ended up writing only for a plurality of four rather than a majority of five.
It was a notable failure of his early leadership that perhaps explains his silence in last week's case. While Justices Thomas and Scalia expressed their own views in separate concurring opinions, Chief Justice Roberts said nothing, silently joining what was clearly a brokered compromise, biding his time.
If there is no mystery about the nature of the chief justice's views, I remain baffled by their origin. Clearly, he doesn't trust Congress; in describing conservative judges, that's like observing that the sun rises in the east. But oddly for someone who earned his early stripes in the Justice Department and White House Counsel's Office, he doesn't like the executive branch any better.
He made this clear in an opinion dissenting from a 6-to-3 decision this term in an administrative law case, City of Arlington v. Federal Communications Commission. The question was whether, when the underlying statute is ambiguous, courts should defer to an administrative agency's interpretation of its own jurisdiction. The answer was clearly yes, according to Justice Scalia's majority opinion that built on decades of precedent on judicial deference to agencies. The chief justice's dissenting opinion was a discordant screed that bemoaned the modern administrative state with its "hundreds of federal agencies poking into every nook and cranny of daily life."
Congress can't be trusted. The executive branch is out of control. What's left?
The Supreme Court. There's a comforting thought as we await Year 9 of the Roberts court.
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