By David G. Savage, Tribune Washington Bureau –
WASHINGTON — Chief Justice John G. Roberts Jr. considers it an insult when he hears it said that he and the justices are playing politics. He has always insisted his sole duty was to decide the law, not to pick the political winners.
Until this week, however, not many were inclined to believe him. Those on the left — and the right — were convinced they could count on Roberts as a reliable vote on the conservative side.
But no more. The chief justice took control of two of the biggest politically charged cases in a decade, involving the Affordable Care Act and Arizona’s immigration law, and he fashioned careful, lawyerly rulings that resulted in victories for the Obama administration.
Those who were surprised might have taken note of the man Roberts describes as one of his heroes — Chief Justice Charles Evan Hughes, a progressive Republican who was chief justice in the 1930s when President Franklin Roosevelt and the court clashed over the New Deal.
When the Supreme Court and the Roosevelt administration seemed headed for a constitutional showdown, Hughes persuaded one wavering justice to switch sides and vote to uphold a minimum-wage law and a collective bargaining measure. The “switch in time that saved the nine” defused FDR’s plan to load up the Supreme Court with additional justices appointed by him. The court-packing plan died in the Senate. The deft leadership by Hughes preserved the court as an independent institution.
This year’s court battle over the health care law did not rise to the level of the New Deal-era clash. But had the Roberts court struck down Obama’s health care law, Democrats and progressives would be making those historic comparisons this week.
“It was masterful. Roberts believes in a modest role for the court, and he was doing just what he promised he would do,” said Stanford law professor Michael W. McConnell, a former appeals court judge appointed by President George W. Bush. “Had the court struck down the law, they would have been the focal point of the campaign. Now, the court comes out with its reputation enhanced.”
Acting on his own, Roberts saved the Affordable Care Act from being struck down as unconstitutional before it could go into effect. His four fellow conservatives had voted in favor of Republican state officials to void the Democrats’ health care measures that were decades in the making.
Roberts, however, found a narrow way to uphold the law as an exercise of Congress’ taxing power. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” he wrote in an opinion joined in part by the four liberal justices.
And in the immigration dispute between Arizona and the Obama administration, Roberts led a 5-3 majority Monday that said federal officials, not the states, had “broad discretion” in deciding whether to arrest and deport illegal immigrants. The ruling blocked the Republican-led states from moving to aggressively enforce the immigration laws on their own.
The message from Roberts was that the Supreme Court, even in a heated election year, was an independent institution, an enforcer of the Constitution, but not a friendly forum for just one party or one side of the ideological divide.
But no one should expect that Roberts has moved left. Next term, the court will take on college affirmative action and possibly gay marriage, and Roberts is likely to take a conservative stand.
Still, this week’s rulings surprised much of Washington, where the partisan divide is so deep that few anticipated a nonpartisan decision. Republican leaders had been preparing to celebrate the demise of Obama’s health care law. Because the court had five Republican appointees, their assumption was the law would go down on a 5-4 vote.
Counting the same votes, Democrats and liberal groups were prepared to launch a political campaign against what they would describe as the pro-business, right-wing Roberts court.
The health care ruling would be paired with Citizens United, the 2010 decision that led to gusher of new political spending.
In that case Roberts, with some hesitation, joined a 5-4 opinion written by Justice Anthony M. Kennedy that extended free-speech rights to corporate groups and unions. At first, Roberts tried to fashion a narrow ruling that would have allowed Citizens United, a small nonprofit group, to sell a DVD that derided Hillary Rodham Clinton, then a Democratic candidate for president. But Kennedy insisted on a much broader opinion that struck down the long-standing ban on campaign spending. Roberts then joined to make the majority.
This past spring, by contrast, the chief justice kept control of the health care opinion. With four conservatives on his right and four liberals on his left, he chose the narrow, middle-ground ruling. He agreed with the conservatives it was unconstitutional to “compel” Americans to buy products, but he also agreed with the liberals the insurance mandate could be upheld as a tax.
Kennedy, ousted from his spot at the center of the action, delivered an angry, stinging dissent Thursday that accused the chief justice of “vast overreaching” and having “invented” a way to uphold the law.
