WASHINGTON
- On Thursday, when Chief Justice John G. Roberts Jr. helped save the
Affordable Care Act for a second time, conservatives accused him of
everything short of treason.
Now
completing his 10th term as the leader of a deeply divided court, Chief
Justice Roberts remains more apt to surprise than any of his
colleagues, and therefore more likely to disappoint.
He
seemed to anticipate the dueling critiques, and used this week’s
opinions to cast himself as a steady practitioner of judicial modesty.
Indeed, he employed very similar language to suggest that his votes were
consistent and principled.
The
court’s job in the health care case, he wrote on Thursday, was to let
the political process work and ensure that Congress’s intentions were
honored. “In a democracy, the power to make the law rests with those
chosen by the people,” he wrote.
The
court’s job in the marriage case was the same, he said on Friday. “It
can be tempting for judges to confuse our own preferences with the
requirements of the law,” he wrote. “The majority today neglects that
restrained conception of the judicial role. It seizes for itself a
question the Constitution leaves to the people, at a time when the
people are engaged in a vibrant debate on that question.”
The two cases illuminate the puzzle that is Chief Justice Roberts. When President George W. Bush nominated him in 2005
to replace Justice Sandra Day O’Connor, his work as a lawyer in
Republican administrations and his brief record as an appeals court
judge gave every indication that his would be a reliably conservative
vote.
But then Chief Justice William H. Rehnquist died, and President Bush nominated Judge Roberts to take over leadership of the court. Taking the center seat at the Supreme Court may have moved him toward the ideological center, too, if only a little.
The
chief justice has, after all, institutional responsibilities along with
jurisprudential ones. He is the custodian of the Supreme Court’s
prestige, authority and legitimacy, and he is often its voice in major
cases.
His
most recent predecessors each served for more than 15 years and
participated in more than 1,000 decisions. But just a handful of those
rulings came to define their legacies.
The court led by Chief Justice Earl Warren is remembered for its cases on desegregation, voting and the rights of criminals. The one led by Chief Justice Warren E. Burger
moved right in criminal cases, but also identified a constitutional
right to abortion. Under Chief Justice Rehnquist, the Supreme Court delivered the 2000 election to George W. Bush.
The Roberts court’s most memorable decisions include campaign finance, health care and Second Amendment
cases in which the chief justice was in the majority. But with Friday’s
marriage decision, a civil rights landmark, Chief Justice Roberts was
on the losing side, and it seemed to sting.
His
colleagues, he said, had portrayed him and other fair-minded people “as
bigoted” for not sharing their understanding of the Constitution.
“In
the face of all this,” he wrote, “a much different view of the court’s
role is possible. That view is more modest and restrained. It is more
skeptical that the legal abilities of judges also reflect insight into
moral and philosophical issues. It is more sensitive to the fact that
judges are unelected and unaccountable, and that the legitimacy of their
power depends on confining it to the exercise of legal judgment.”
He suggested but did not quite say that he might vote for same-sex marriage were he an elected lawmaker.
“Stripped
of its shiny rhetorical gloss, the majority’s argument is that the due
process clause gives same-sex couples a fundamental right to marry
because it will be good for them and for society,” he wrote. “If I were a
legislator, I would certainly consider that view as a matter of social
policy. But as a judge, I find the majority’s position indefensible as a
matter of constitutional law.”
His tone on Friday may have been understated, but he compared the reasoning of Justice Anthony M. Kennedy’s majority opinion in the marriage case with some of the court’s most discredited decisions. He cited Dred Scott,
the 1857 decision that said black slaves were property and not
citizens, saying that there, too, “the court relied on its own
conception of liberty.” The chief justice also cited Lochner v. New York,
a 1905 decision that struck down a New York work-hours law and has
become shorthand for improper interference with matters properly left to
legislatures.
Chief
Justice Roberts chided members of the majority for inconsistency by
quoting their own words. Just last year, the chief justice wrote,
Justice Kennedy had insisted on respect for voters’ judgments in an affirmative action case.
“It is demeaning to the democratic process,” Justice Kennedy had
written, “to presume that voters are not capable of deciding an issue of
this sensitivity on decent and rational grounds.”
Then Chief Justice Roberts quoted another member of the majority, Justice Ruth Bader Ginsburg, from a 1985 law review article criticizing the court for moving too fast in Roe v. Wade,
the 1973 decision identifying a constitutional right to abortion:
“Heavy-handed judicial intervention was difficult to justify and appears
to have provoked, not resolved, conflict.”
The
chief justice bristles at accusations that the court’s decisions are
motivated by partisan politics. He cannot have enjoyed the barrage of
name calling after Thursday’s health care decision from commentators on
the right — “a disgrace,” “Nancy Pelosi’s copy editor,” “a disastrous
choice” for the Supreme Court. The Wall Street Journal’s editorial page worried
that the chief justice may be “moving pointedly to the left on the
bench, like former Justices David H. Souter or Harry A. Blackmun,”
Republican appointees who had disappointed their conservative sponsors.
But Chief Justice Roberts’s opinion in the same-sex marriage
case pointed in another direction, disappointing those liberals who
thought he might find a way to provide a sixth vote for a constitutional
right to such unions. Critics on the left expressed deep
disappointment, saying, for instance, that the chief justice had
“treated gay men and lesbians to a lecture.”
In
his dissent on Friday, Chief Justice Roberts suggested that the two
opinions were entirely consistent. “Under the Constitution,” he wrote,
“judges have the power to say what the law is, not what it should be.”
No comments:
Post a Comment