Saturday, July 14, 2012

Was John Roberts Seeking Redemption?

Much shock and postmortem analysis has followed the Supreme Court's ruling on the Affordable Care Act, where Chief Justice John Roberts stunned conservatives by joining the Court's four liberals in upholding the act in a 5-4 decision.

Conservative rage inside the Court erupted in an unprecedented leak that suggested Roberts initially deemed the law unconstitutional, and later changed his mind. The four conservative justices on the losing side were reportedly furious.

Court observers have noted that the position Roberts ultimately embraced was consistent with beliefs about judicial temperance and the Court's role that he has prominently expressed in the past. Namely, the Court should find ways whenever possible to accommodate the statute under consideration and to give great deference to legislative intent; it should never overlay its own ideology by legislating from the bench. Thus, Roberts concluded that the act was not constitutional on interstate commerce grounds, but that it was constitutional as an expression of the government's authority to tax. Roberts saw that this was so even though the litigants did not argue the case along those lines, and in so doing, according to some observers, he found a way to uphold the law in the spirit of judicial humility and restraint that he has previously advocated.

It is also likely that Roberts was queasy about overturning, in a fraught and heated political climate, a duly enacted law of such immense sweep and scope—and doing so in a 5-4 decision by a Court divided along partisan and ideological lines. Better, if the vote was to break 5-4, to uphold the law than to strike it down, and for the majority to include a conservative. Better yet for that conservative to be the Chief Justice, and the ultimate author of the opinion.

This line of reasoning makes a lot of sense, but I wonder if an additional factor was at play. I wonder if John Roberts was subconsciously seeking redemption for past transgressions. That's because the John Roberts consistently expressed in speeches and Congressional testimony hasn't always been the same John Roberts who has voted on past Supreme Court cases.

In their book It's Even Worse Than It Looks, Thomas E. Mann and Norman J. Ornstein highlight testimony John Roberts gave to the Senate Judiciary Committee during his confirmation:

Judges and justices are servants of the law, not the other way around. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedents, shaped by other judges equally striving to live up to the judicial oath.... I will remember that it is my job to call balls and strikes and not to pitch or bat.

I do think that it is a jolt to the legal system when you overrule a precedent.... It is not enough that you may think the prior decision was wrongly decided.... The role of the judge is limited; the judge is to decide the cases before them; they're not to legislate; they're not to execute the laws.

And this, from a speech he gave a year later:

The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground.

And especially:

If it is not necessary to decide more to dispose of a case, in my view it is not necessary to decide more. [my emphasis]

The legislature, not the Court, makes law.

This is classic John Roberts. But Mann and Ornstein ask us to consider the John Roberts of the Citizens United case, who voted with the conservative majority, in a 5-4 decision, to strike down key aspects of campaign finance law in a "deregulatory juggernaut to overturn decades of law and precedent. In a breathtaking breach of judicial norms dealing with cases and controversies and legal precedents...."

It's important to understand that the plaintiff in Citizens United was narrowly challenging a provision of the 2002 Bipartisan Campaign Reform Act (a.k.a. McCain-Feingold), asking only for an "as applied" exception for the documentary film Hillary: The Movie. The Court's extraordinary machinations in the case made a mockery of Roberts's opinion that "if it is not necessary to decide more to dispose of a case, in my view it is not necessary to decide more."

According to Mann and Ornstein:

The Justices heard the case on that basis [the narrow exception], but Chief Justice John Roberts, with support from his allies on the Court, decided unilaterally to raise the broader issue of whether a prohibition on corporations' independent expenditures was constitutional, and he demanded a re-hearing. That 5-4 ruling overturned decades of established doctrine, throwing the world of campaign finance into turmoil and demonstrating a troubling new approach to governance by the Supreme Court. The willingness to do something dramatic and highly controversial on a 5-4 vote, underscoring the pattern set in 2000 in the 5-4 highly charged decision that decided the outcome of the presidential election, Bush v. Gore, was accompanied by what we believe was a reckless approach to jurisprudence.

Indeed. The floodgates holding back an immense tide of political money have collapsed, in part because of Supreme Court decisions. More than ever Mitt Romney can say, with some foundation in recent jurisprudence, that "corporations are people too." So much for judicial restraint. So much for it being "not necessary to decide more." Given how the current political season is unfolding, it's easy to imagine John Roberts feeling some buyer's remorse.

There is no doubt that John Roberts is a staunch, unabashed conservative to his core. But it also seems quite likely that his oft-stated philosophy on the role of the Court can be taken at face value. He really does believe, even if his actions don't always seem consistent with that belief, that the Court should seek consensus, should eschew controversy and polarization, should honor precedent, and should be biased toward upholding the statute under consideration.

I wonder how much John Roberts was thinking about that philosophy, and about Citizens United, as he pondered the Affordable Care Act.

Copyright (C) 2012 James Michael Brennan, All Rights Reserved