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For court and country

For court and country

Posted: Monday, July 9, 2012 7:00 pm

By DOUGLAS COHN
and ELEANOR CLIFT      
WASHINGTON — Conservatives feel betrayed that Chief Justice John Roberts sided with the four liberals on the Court to uphold the Affordable Care Act. Their enmity increased in the wake of leaked reports from the Court that Roberts had first lined up with his fellow conservatives to overturn the ACA, but then switched his vote after reflecting on the political impact.
Conservative pundits accused the mainstream media of intimidating Roberts with a spate of articles saying that a 5 to 4 decision with all 5 Republican-appointed justices voting together would cement the Court’s reputation as putting politics above the law.
Bush v. Gore in 2000 divided along partisan lines, setting a tone that has dogged the Court since. The Citizens United decision in 2010 reinforced the view that the Court had moved irrevocably to the right, unleashing corporate interests that mostly benefited Republicans.
We’ll have to wait for Roberts’ memoirs decades from now to know the full extent of his thinking, and whether he had the institutional image of the Supreme Court in mind when he wrote for the majority in the health care case.
However he arrived at his decision, he saved the Court’s reputation and his own in one fell swoop. He reclaimed the Court from Justice Kennedy, who had recently appeared on the cover of Time Magazine as “the only justice who matters.” It was widely presumed that Kennedy would be the fifth vote on health care and Roberts the sixth; almost no one predicted that Roberts would be the lone deciding vote.
However, on March 21 we wrote: “Roberts is reportedly very sensitive to the lingering image that the Court is divided along political lines, and that the partisan division dictates Court rulings. Constitutional scholars present convincing arguments on both sides of the health insurance case, so let’s assume for the sake of speculation, that Roberts sees merit in upholding the constitutionality of the Affordable Care Act. . . . As Roberts presses forward with this controversial case in the midst of an election, he must decide whether he is a Chief Justice or a Republican; the two may not be compatible.”
With that one vote, Roberts introduced some welcome unpredictability to the Court, but it is way too soon to know if it will be lasting. The chief justice left for the Mediterranean island of Malta for a two-week teaching gig, escaping all the second-guessing and speculation about his singular vote, and what it might mean for the future.
Roberts, 57, is still a young man by Supreme Court standards, with more service likely ahead of him than the seven years he has served since his appointment by President George W. Bush. Looking ahead to the Court’s next term, which begins in October, there are several blockbuster cases that could well divide the Court along familiar ideological lines.
Affirmative action is back, this time with a lawsuit filed by a white student against the University of Texas at Austin that alleges she was rejected because others were advantaged by race and ethnicity. Nine years ago in a case involving the University of Michigan law school, the Court said it was admissible to use race as a component in admissions, but not as the sole factor.
Sandra Day O’Connor was on the Court then, and without her there, affirmative action may be doomed. The Voting Rights Act will also come before the Court and whether to continue its provision requiring federal approval of changes in voting rights laws in states with a history of discrimination. Liberals looking at Roberts in a new light after his stance on health care could be disappointed to find him reverting back to siding with the Court’s conservatives on civil rights and voting rights.
The clearest test of whether Roberts can rise above ideology will come when the Supreme Court grapples with same sex marriage. House Republicans have asked the Court to take their challenge to the government’s refusal to defend the Defense of Marriage Act (DOMA) that was signed into law by President Clinton.
Republicans don’t like same sex marriage, but the courts have consistently ruled in its favor. Religious institutions can do what they like, but it’s hard to make the case that it’s constitutional for the government to decide who marries whom when marriage is essentially a civil contract between two people. Roberts will be decisive on this one, whichever way he goes.
It is incumbent on judges, especially Supreme Court judges, to place court and country over party and politics. It is the underpinning of Supreme Court legitimacy. Without it, that entire branch of government, a branch lacking any enforcement arm, a branch entirely dependent upon its credibility, effectively becomes subservient to its erstwhile executive and legislative partners. Clearly, Chief Justice Roberts understands this.  Published in The Messenger 7.9.12

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