Roberts again shows in­de­pen­dent streak

Los Angeles Times - - FRONT PAGE - By David G. Sav­age

WASHINGTON — Since be­com­ing chief jus­tice 10 years ago, John G. Roberts Jr. has been de­ter­mined to show that the court he leads is made up of im­par­tial ju­rists, not politi­cians in robes.

In the phrase he used at his con­fir­ma­tion hear­ings, each jus­tice is “like an um­pire” at a base­ball game — not fa­vor­ing one team over the other.

On Thurs­day, Roberts showed again his will­ing­ness to brush aside par­ti­san pol­i­tics and forge a mid­dle ground on some of na­tion’s most di­vi­sive is­sues, writ­ing a 6- 3 de­ci­sion that up­held the broad reach of Pres­i­dent Obama’s healthcare law.

It was the sec­ond time in three years that Roberts had led the Supreme Court to up­hold the Af­ford­able Care Act, also known as Oba­macare. The de­ci­sion sur­prised and dis­ap­pointed some of the con­ser­va­tives who had once hailed his ap­point­ment.

“We might as well call the law … RobertsCare,” said Ilya Shapiro, a lawyer at the Cato In­sti­tute, a lib­er­tar­ian think tank in Washington.

When Roberts spoke of be­ing an um­pire, “a lot of peo­ple on the left sneered,” said Neal Katyal, who served as act­ing U. S. so­lic­i­tor gen­eral in Obama’s f irst term. “To­day’s de­ci­sion shows he re­ally meant what he said. It’s a pro­found state­ment about the dif­fer­ence be­tween law and pol­i­tics.”

Roberts cringes at the reg­u­lar ref­er­ences to the “con­ser­va­tive bloc” or the

“lib­eral wing” of the court. Last year, he was pleased when the jus­tices were able to agree unan­i­mously in a much higher per­cent­age of their cases.

Thurs­day’s de­ci­sion sent a par­tic­u­larly loud mes­sage about a non­par­ti­san court be­cause the chief jus­tice gave a gen­er­ous read­ing to a lib­eral law passed by a Demo­cratic- con­trolled Congress.

But the de­ci­sion is not a sign that Roberts has be­come a lib­eral or shifted strongly to the left, as some al­lege.

On the same day, Roberts joined three con­ser­va­tives in dis­sent when the ma­jor­ity held that the Fair Hous­ing Act for­bids prac­tices that have a “dis­crim­i­na­tory ef­fect” on racial mi­nori­ties even if there is no in­ten­tional dis­crim­i­na­tion. In 2013, he voted with con­ser­va­tives to strike down part of the Vot­ing Rights Act.

His de­ci­sions on eas­ing cam­paign f inance rules, in­clud­ing Cit­i­zens United, which gave cor­po­ra­tions and unions the abil­ity to make un­lim­ited con­tri­bu­tions to po­lit­i­cal causes, firmly es­tab­lished Roberts’ record as a con­ser­va­tive.

But on most is­sues, the chief jus­tice has shown him­self to be most com­fort­able in the mod­er­ate mid­dle and un­will­ing to push the law too far to the right or too quickly.

In April, he joined with the court’s four lib­eral jus­tices to up­hold a Florida law that pro­hib­ited elected judges from per­son­ally so­lic­it­ing cam­paign con­tri­bu­tions. Roberts sup­ports the 1st Amend­ment right to spend freely on cam­paigns, but judges are not politi­cians, he said.

In other al­liances with lib­er­als, he helped forge a 6- 3 ma­jor­ity to rule that a po­lice of­fi­cer may not de­tain a car stopped for a traf­fic vi­o­la­tion so a drug- sniff­ing dog may be brought to the scene. He also joined a 5- 4 opin­ion by Jus­tice Ruth Bader Gins­burg that freed a Florida f ish­er­man from fed­eral ob­struc­tion- of- jus­tice charges for hav­ing tossed over­board sev­eral un­der­sized red grouper

Fur­ther ev­i­dence on how Roberts sees his role could come as early as Fri­day in the court’s de­ci­sion on gay mar­riage. It’s widely ex­pected that a ma­jor­ity of jus­tices will de­clare the right of gays and les­bians to marry na­tion­wide, but given Roberts’ grow­ing in­de­pen­dent streak, com­bined with the im­pact that case will un­doubt­edly have on his legacy, some are won­der­ing whether the chief jus­tice will find a way to side with lib­er­als in what would be a land­mark de­ci­sion.

Roberts’ rea­son­ing in the healthcare case showed sev­eral of his char­ac­ter­is­tic traits — a de­sire for mod­er­a­tion as well as a con­cern over the real- world im­pact of the court’s de­ci­sions, par­tic­u­larly on busi­ness.

Had the jus­tices ruled for the con­ser­va­tive ac­tivists who sued the ad­min­is­tra­tion, more than 6.4 mil­lion peo­ple could have lost their health cov­er­age. That in turn could “well push a state’s in­di­vid­ual in­sur­ance mar­ket into a death spi­ral,” Roberts said.

It would be “im­plau­si­ble,” he said, to think the Congress that passed the healthcare law in­tended to limit its tax sub­si­dies to the 13 states that es­tab­lished an ex­change, or mar­ket­place, of their own.

He re­jected the claim brought by con­ser­va­tive ac­tivists who pointed to one part of the law that said sub­si­dies were lim­ited to in­sur­ance poli­cies bought on an ex­change “es­tab­lished by the state.” This hy­per- tech­ni­cal read­ing of one phrase did not make sense and was con­tra­dicted by other parts of the law, he said.

“Congress passed the Af­ford­able Care Act to im­prove health in­sur­ance mar­kets, not to de­stroy them,” he wrote.

Duke Law pro­fes­sor Neil Siegel called the ma­jor­ity opin­ion “a mas­ter­piece of le­gal craft, good sense and fi­delity to the law at a time when po­lit­i­cal po­lar­iza­tion threat­ens to spill over into the ju­di­ciary.”

But the three con­ser­va­tive dis­senters ac­cused the ma­jor­ity of “in­ter­pre­tive jig­gery- pok­ery” and “som­er­saults of statu­tory in­ter­pre­ta­tion” to f ix a po­lit­i­cal, not le­gal, prob­lem.

“This court’s two de­ci­sions on the [ healthcare] act will surely be re­mem­bered through the years,” wrote Jus­tice An­tonin Scalia, joined by Jus­tices Clarence Thomas and Sa­muel A. Al­ito Jr. “And the cases will pub­lish for­ever the dis­cour­ag­ing truth that the Supreme Court of the United States fa­vors some laws over oth­ers, and is pre­pared to do what­ever it takes to up­hold and as­sist its fa­vorites.”

In most cases, Roberts is still more likely to vote with the court’s con­ser­va­tives. Univer­sity of Chicago Law pro­fes­sor David Strauss said the fi­nal word about the Roberts court wouldn’t come un­til it weighs in on broad ma­jor is­sues like abor­tion and race.

“But the chief jus­tice has made it clear that he meant what he said in his con­fir­ma­tion hear­ings: The big de­ci­sions should be made by the peo­ple who won an elec­tion, whether the court agrees with them or not, as long the jus­tices don’t have to dis­tort the law to do that,” Strauss said.

Chip Somodevilla Getty I mages

HOUSE SPEAKER John A. Boehner ( R- Ohio), at a news con­fer­ence af­ter the de­ci­sion, wouldn’t com­mit to any new strat­egy to re­peal or re­vise the law.

Getty I mages

CHIEF JUS­TICE reen­forced his state­ment that each jus­tice is “like an um­pire.”

Win McNamee As­so­ci­ated Press

JOHN G. ROBERTS JR. says he dis­likes the ref­er­ences to the “con­ser­va­tive bloc” or the “lib­eral wing” of the U. S. Supreme Court, which he’s led for a decade.

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