Best The Oath: The Obama White House and the Supreme Court
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A Letter from the Author
Think John Roberts has discovered his inner moderate? Dont bet on it.
It is true, of course, that Chief Justice Robertss vote in the health-care case saved the Affordable Care Act and perhaps Barack Obamas presidency as well. At the end of the Supreme Courts last term, Roberts joined with the Courts four liberals Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan to uphold the constitutionality of the health-care reform law. It was the first time ever that the Chief joined with the liberal quartet in a major case. Its also probably the last.
Roberts has the advantage of a long-term perspective. At fifty-seven years old, Roberts will likely still be Chief Justice when Sasha and Malia Obama become eligible to succeed their father in the White House. Robertss decision in the health-care case reflected his understanding of his place in the history of the Court. In terms of public attention, the health-care case known as National Federation of Independent Business v. Sebelius formed a trilogy with Bush v. Gore (2000) and Citizens United v. Federal Election Commission (2010). In those first two cases, five Republican appointees to the Court rendered decisions which provided dramatic benefits to the Republican Party the first, by installing George W. Bush as president, and the second, by creating a campaign finance system that favors the GOP. In the health-care case, Roberts had to ask himself whether the five Republicans on the Court were going to destroy the central achievement of a Democratic president.
Roberts chose not to go that far. His Republican allies, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, overplayed their hand. They sought to invalidate the law it its entirety, not just the controversial individual mandate. If Roberts had joined them, the Chief would have stirred volcanic partisan outrage and placed the Supreme Court at the center of the 2012 election. Instead, he chose a novel ground Congresss constitutional power to levy taxes to uphold the law. He established new limits on the Commerce Clause, which is usually the principal means for Congress to regulate the economy. He advanced the conservative cause in the long run by disappointing conservatives in the short run.
Chief Justice Roberts also gave himself a political free hand for the foreseeable future. He can be as conservative as he likes and he has insulated himself from criticism for partisanship. That will be important soon. The Court will likely consider several politically incendiary issues in its 2012-13 term. May universities use race as a consideration in admissions, as Justice Sandra Day OConnor said they could, in a famous decision from 2003? Does the Voting Rights Act of 1965 discriminate against white voters and legislators in southern states? Does the Defense of Marriage Act discriminate unlawfully against gay people? And most dramatically of all does the constitution
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