Roberts may hold key vote as Supreme Court moves right

South Florida Times - - FRONT PAGE - Chief Jus­tice John Roberts By MARK SHER­MAN

WASH­ING­TON (AP) - Chief Jus­tice John Roberts is the Supreme Court's new man in the mid­dle. It's just that the mid­dle may have moved well to the right.

The re­tire­ment of Jus­tice An­thony Kennedy means Roberts prob­a­bly will be the con­ser­va­tive jus­tice clos­est to the court's four lib­er­als, al­low­ing him to con­trol where the panel comes down in some of its most con­tentious cases.

Roberts will be the jus­tice who de­ter­mines “how far they go and how fast they go,'' said Wash­ing­ton lawyer John El­wood.

Kennedy played a sim­i­lar role for many years - his votes on gay rights, abor­tion, the death penalty, the en­vi­ron­ment, vot­ing rights and af­fir­ma­tive ac­tion ba­si­cally de­ter­mined the out­come of cases on which the court was di­vided be­tween lib­er­als and con­ser­va­tives.

Roberts has typ­i­cally been to Kennedy's right. He did not en­dorse a con­sti­tu­tional right to marry for same-sex cou­ples. He dis­sented when the court struck down Texas abor­tion clinic re­stric­tions in 2016. The chief jus­tice also was in dis­sent from the court's first ma­jor cli­mate change de­ci­sion in 2007, when it held that the En­vi­ron­men­tal Pro­tec­tion Agency could reg­u­late emis­sions of car­bon diox­ide and other green­house gases as air pol­lu­tants.

New cases on any of those is­sues could be be­fore the court soon and, even if Roberts is not pre­pared to over­rule ma­jor Supreme Court prece­dents, he could be in po­si­tion to cut back on en­vi­ron­men­tal pro­tec­tions as well as gay rights and abor­tion rights.

Smaller steps might be in keep­ing with Roberts' preference for avoid­ing ma­jor di­vides where pos­si­ble, and at­tract­ing votes from both con­ser­va­tives and lib­er­als. The 63-year-old chief jus­tice may be in no hurry to move quickly, as he could be on the bench an­other 15 to 20 years.

“Chief Jus­tice Roberts, more than any other jus­tice on the court, be­lieves in nar­row rul­ings that at­tract broad ma­jori­ties, an­swer­ing no more than nec­es­sary to re­solve a given case,'' Jonathan Adler, a pro­fes­sor at the Case Western Re­serve Univer­sity School of Law, wrote on the Volokh Con­spir­acy le­gal blog.

In one sense, the Supreme Court's im­me­di­ate fu­ture could look a lot like the term that just ended. Roberts seemed firmly in con­trol of a court that over­whelm­ingly went con­ser­va­tive in di­vided cases, in­clud­ing up­hold­ing Pres­i­dent Don­ald Trump's travel ban, strik­ing a blow at pub­lic-sec­tor la­bor unions, lim­it­ing work­ers' rights to band to­gether to com­plain about pay and af­firm­ing Ohio's ag­gres­sive ef­forts to purge its vot­ing rolls.

Only on one oc­ca­sion did Roberts join with the lib­eral jus­tices in a 5-4 de­ci­sion, a rul­ing that said po­lice gen­er­ally must have warrants to get telecom­mu­ni­ca­tions com­pa­nies' records show­ing where peo­ple have used their cell­phones.

Twice, though, Roberts was among a larger group­ing of jus­tices in cases that skirted the big is­sue at stake, but that could re­turn to the court. In one case, the jus­tices re­jected a lower-court rul­ing that set lim­its on re­dis­trict­ing for par­ti­san gain, but with­out de­cid­ing whether lim­its ever could be im­posed. In an­other, the court ruled in fa­vor of a baker who would not cre­ate a wed­ding cake for a same­sex cou­ple, yet left on the ta­ble the ques­tion of whether re­li­gious ob­jec­tions could be used to avoid com­ply­ing with anti-dis­crim­i­na­tion laws that pro­tect LGBT peo­ple.

For all his votes on the con­ser­va­tive side of is­sues, Roberts has had his crit­ics on the right. They in­clude Trump, who once la­beled Roberts “an ab­so­lute dis­as­ter'' for the chief jus­tice's crit­i­cal vote to up­hold the Af­ford­able Care Act in 2012. Trump has not pub­licly crit­i­cized Roberts since he's been pres­i­dent.

The case arose in the mid­dle of the 2012 pres­i­den­tial cam­paign, in which Barack Obama was seek­ing re­elec­tion and the health care law also known as “Oba­macare'' was a ma­jor is­sue. Then, as now, the five con­ser­va­tives were nom­i­nees of Repub­li­can pres­i­dents, while the four lib­er­als were cho­sen by Democrats.

In the end, Roberts sided with the lib­er­als, a de­ci­sion some court ob­servers have at­trib­uted in part to con­cern about pub­lic per­cep­tions of the court and the chief jus­tice's de­sire to be seen as above the po­lit­i­cal fray.

“He's con­ser­va­tive, but he is an in­sti­tu­tion­al­ist. He be­lieves deeply in the Supreme Court,'' said Ge­orge Wash­ing­ton Univer­sity law pro­fes­sor Jonathan Tur­ley.

A test of Roberts' abil­ity to set the court's agenda could come on the topic of guns, said UCLA law pro­fes­sor Adam Win­kler.

Roberts voted in fa­vor of gun rights in two cases that held that Amer­i­cans have the right to have guns, at least for self-de­fense in their homes. But the court has since re­jected re­peated at­tempts to ex­pand on the right of gun own­er­ship, in part be­cause Roberts and Kennedy would not join the other con­ser­va­tive jus­tices to take on a new case.

It takes the votes of four jus­tices for the court to agree to re­view a case. If Kennedy's re­place­ment is a fourth vote for a new case about guns, then Roberts might soon have to weigh in on is­sues like the right carry a con­cealed firearm in pub­lic or bans on as­sault weapons, Win­kler said.


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