The Bush nominee who said he saw himself as a judicial "umpire," calling balls and strikes, may have hit one out of the park with his carefully crafted opinion agreeing with arguments on both sides of the health-care issue in an effort to restore the nonpartisan image of the court.
At his confirmation hearings in 2005, Chief Justice John Roberts said he saw himself as an “umpire,” and that “nobody ever went to a ballgame to see the umpire.”
But Roberts turned out to be the surprise attraction Thursday, when spectators packed the Supreme Court and clogged the front steps awaiting its ruling on the health-care law, one of the more anticipated and possibly politically pivotal decisions in recent years.
A conservative nominated by President George W. Bush, Roberts had sided with the court’s liberal wing when it announced the 5-4 outcome to uphold President Obama’s key domestic achievement.
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“I will remember that it’s my job to call balls and strikes and not to pitch or bat,” Roberts told his Senate inquisitors seven years ago. But in his ruling, he certainly threw a curveball few had expected. Not only did Roberts bail out Obama, who as a senator had voted against Roberts for the court, the chief justice also snuffed out one of the Republican Party’s biggest lines of attacks.
Roberts may have sided with liberals, but he also gave conservatives important legal beachheads that could pay off down the road. He abandoned his perch as one of the court’s consistent conservatives in order to play peacemaker between liberals ready to uphold the law in full and conservatives who wanted to pull the plug.
And he did it all without the help of Justice Anthony Kennedy, who most often plays the tiebreaker role that Roberts assumed Thursday.
“There’s no question this was a moment of truth for John Roberts,” said Jeffrey Rosen, a law professor and Supreme Court expert at George Washington University. “He had to decide what kind of court he wanted to preside over.”
Roberts’ opinion, which was written under his own name and had the effect of controlling the entire case, contained two main facets. He sided with conservatives in finding that the government could not, under the Constitution’s commerce clause, require most Americans to buy insurance. And he placed limits on what the government could demand of states in expanding Medicaid coverage.
But on a crucial point, Roberts sided with the court’s liberal wing in finding that the insurance mandate is constitutional as a tax.
“If you told people that there were four solid votes to strike down the whole thing, I think most people … would have been surprised to find that among the four would have been Justice Kennedy and not Chief Justice Roberts,” said Paul Clement, who represented a group of 26 states that challenged the health-care law.
Roberts may have had larger, more long-term concerns on his mind than this year’s presidential election.
“For him to have taken a very predictable ideological position would have meant that he wasn’t a particularly independent legal thinker, and it’s very difficult to get your place at the head of the line of justices until you’ve somehow made your own mark,” said Steven Smith, a professor of political science at Washington University in St. Louis. “He found a way to pave the path that was somewhat unpredictable.”
Liberals praised Roberts. Jeffrey Rosen, a George Washington University law professor, called it “a dramatic vindication of the vision of bipartisanship that Chief Justice Roberts articulated at the start of his term.”
Conservatives felt a keen sense of betrayal.
“The worst part of the Bush legacy,” tweeted Ben Shapiro, a conservative commentator and talk-show host.
“His reputation is forever stained in the eyes of conservatives, and there will be no rehabilitating of it,” conservative Brent Bozell told the website The Daily Caller. “He will be seen as a traitor to his philosophy.”
Roberts in a way threaded a legal needle. He rejected the Obama administration’s primary argument that the mandate to purchase health insurance or pay a fine was constitutional under Congress’ authority to regulate commerce. But Roberts also found a compromise to justify the administration’s plans to expand Medicaid.
“We do not consider whether the act embodies sound policies,” Roberts wrote for the majority. “That judgment is entrusted to the nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”
Roberts previously was a federal appeals-court judge, and a conservative Republican Washington insider before that, who did stints at the Justice Department, the White House and a top Washington law firm.
Roberts clerked for the late Supreme Court Justice William Rehnquist before Rehnquist moved up to chief justice. At his confirmation hearings, Roberts called Rehnquist a “mentor,” one who also had a moment when he confounded legal and political expectations. Rehnquist sided with the court’s liberals in 2003 by ruling that states had to comply with the federal Family and Medical Leave Act, a Clinton administration accomplishment.
Lately, however, the court has come to be seen in some quarters as dancing too closely to the political fires. More than three-quarters of the public believes the justices allow their personal or political views to color their decisions, according to a recent CBS News/New York Times poll.
That sentiment started, perhaps, more than a decade ago with the controversial Bush v. Gore decision, which decided the 2000 presidential election. It’s gained momentum under Roberts with the 2010 Citizens United ruling, which opened up the financial floodgates for campaign spending.
Laurence Tribe, a liberal professor of constitutional law at Harvard Law School who taught Roberts and Obama, said he was pleased that Roberts “saved the day,” not just on the health-care law, but also “perhaps the court, whose place as a legal institution had begun to fall into dangerous disrepute.”
The ruling, Tribe said, would be central to Roberts’ legacy.
The son of a Bethlehem Steel executive, Roberts, 57, grew up in a prosperous home in northwestern Indiana near Lake Michigan and excelled academically and athletically at an elite, all-boys Catholic school.
In one early test of his authority, Roberts served as the school’s enforcer of a strict dress code in class and the dining hall.
He went on to Harvard, where the socially conservative Midwesterner excelled but also bristled at many of his peers’ liberal views on abortion rights, racial preferences and other political topics of the day.
He clerked for Chief Justice William Rehnquist and became a legal counsel in the Reagan administration, touching on some of the most polarizing issues of the 1980s, including school prayer and women’s rights in the workplace.
Roberts said during his 2005 confirmation hearing that he was “not an ideologue” and decided cases on pragmatic grounds: “I do not have an overarching judicial philosophy that I bring to every case. I tend to look at the cases from the bottom up rather than the top down.”
A number of legal observers compared Roberts’ threadingthe-needle approach Thursday to the strategy used by one of Roberts’s judicial heroes, Chief Justice John Marshall, who, in the landmark 1803 case, Marbury vs. Madison, established the court’s power of judicial review. But the decision itself was a legal pretzel, concluding that Thomas Jefferson’s administration had acted illegally but also that the court lacked jurisdiction.
The decision set the stage for two centuries of jurisprudence while avoiding an immediate political conflict with a sitting president. Bradley Joondeph, a Santa Clara University law professor who clerked for former Justice Sandra Day O’Connor, said Roberts avoided a similar conflict with Obama over health care while establishing conservative limits on federal power.
“All told, it was a stroke of judicial genius,” Joondeph wrote on his blog. “A Marbury for our time.”