AT 10, THE ROBERTS COURT DEFIES LABELS
Landmark rulings have kept justices at center of controversy
Three years into John Roberts’ tenure as chief justice of the United States, the Supreme Court ruled by one vote that the Second Amendment protects the right to keep guns at home for self-defense.
Seven years later to the day, the court ruled — again by one vote — that the 14th Amendment requires states to issue marriage licenses to same-sex couples.
Leaning right on guns but left on gays, right on race and religion but left on health care, the Roberts Court reaches its 10-year anniversary this week at the fulcrum of American public policy, culture— and politics.
From the court’s landmark Citizens United v. Federal Election Commission decision allowing unlimited corporate spending in political campaigns to its razor-thin ruling that upheld President Obama’s signature health care law, the high court under Roberts has struggled to balance a strict reading of the Constitution and federal statutes against the pressures of politics and public opinion.
It hasn’t always been the modest court Roberts said he wanted at his confirmation hearings in 2005. “The role of the judge is limited,” he said then. “The judge is to decide the cases before them. They’re not to legislate. They’re not to execute the laws.”
Despite Roberts’ desire that the court maintain consistency, consensus and a low profile, the justices have swung right and left in rulings that affect all aspects of American life, from post-9/11 national security and international relations to race, sex, religion and commerce. It has tackled issues of birth and death, abortion and contraception, the air we breathe and the water we drink.
“This is a court that really wants to be and is at center stage of American public life,” says Erwin Chemerinsky, dean of the University of California-Irvine School of Law. “This court has decided as many blockbuster cases with huge social impact as almost any 10-year period in American history.”
Along the way, the court that presidents from Ronald Reagan to Barack Obama built has wrestled with problems involving modern technology and an interconnected world, forcing nine justices who qualify for AARP membership to navigate GPS, decipher DNA and testpilot the most violent of video games.
The result is that 10 years after Roberts’ confirmation on Sept. 29, 2005, the court is still struggling to define itself.
That has made the court a bit of an orphan in Washington’s internecine politics — reviled by liberals for decisions such as Citizens United and a series of rulings against racial preferences, but increasingly denounced by Republicans who have seen GOP presidents name 12 of the past 16 justices without winning five consistently reliable votes.
“We’re frustrated as conservatives,” Sen. Ted Cruz, who clerked for Roberts’ predecessor as chief justice, William Rehnquist, said during the most recent Republican presidential debate. “We keep winning elections, and then we don’t get the outcome we want.”
They’ve had plenty of chances. Four justices are new to the court in the past decade, including Roberts, the nation’s 17th chief justice, and two history-advancing women, Sonia Sotomayor and Elena Kagan. None has had the impact of the fourth new justice, Samuel Alito, whose conservatism represents a stark contrast with his predecessor, the moderate Sandra Day O’Connor. He has joined Justices Antonin Scalia and Clarence Thomas on the court’s right flank.
It was Alito’s confirmation in 2006 that began the court’s march to the right. He produced the fifth vote against partial-birth abortion and school desegregation plans, and for the right to keep guns at home for self-defense. He was the fifth vote in Citizens United — the case that has come to symbolize the Roberts Court’s free-market conservatism and that has generated the loudest liberal protests, from the president on down.
Obama’s nominations of Sotomayor in 2009 and Kagan the following year represented a bit of a counterweight. Sotomayor has developed one of the most liberal voting records among Supreme Court justices of the past 70 years. Kagan, a former Harvard Law School dean and U.S. solicitor general, has become a savvy questioner and witty writer who pushes back against her conservative colleagues. Their leader and role model, Justice Ruth Bader Ginsburg, 82, has used their ascension to create a solid liberal voting bloc — one that dominated the court last term.
As a result, the court under Roberts has fallen into a pattern of being characterized as conservative in most cases, liberal in some — just the sort of labels the chief justice has sought to avoid. Since Kagan’s confirmation, the court has appeared for the first time just as partisan as the other branches of government: five conservatives put there by Republican presidents, four liberals named by Democrats.
“Roberts has a task and a half,” says Lee Epstein, a Washington University Law School professor. “It’s a political court. It’s an ideological court. But he’s confronted with the additional problem that it looks like a partisan court.”
On so many cases, it’s also Justice Anthony Kennedy’s court — divided 4-4 with Kennedy in the middle. President Reagan’s third choice in 1988, he has replaced O’Connor as the perennial swing vote. He’s often conservative on business and criminal law issues, but he has a libertarian streak and a soft spot for civil rights— most notably gaymarriage.
Then there is Roberts, who each year becomes tougher to label. At 60, he is likely to preside for years, if not decades, to come — perhaps even threatening Chief Justice John Marshall’s record of 34 years at the center of the bench.
“He doesn’t want to go down in history as just another political activist,” says David Strauss, a University of Chicago Law School professor who has argued 18 cases inside the marble courtroom. “He wants to go down in history as a chief justice who did the job right.”
Roberts cut a modest figure before the Senate Judiciary Committee when making his case a decade ago. “It’s my job to call balls and strikes and not to pitch or bat,” he assured lawmakers. The Senate rewarded him with a 78-22 confirmation vote, better than the justices who have followed. Obama voted “no.”
Mostly true to his word, Roberts’ tenure has been marked by an incremental approach to decision-making — issuing narrow rather than bold rulings that have the inevitable effect of bringing the same issues back to the court.
“It’s my job to call balls and strikes and not to pitch or bat.” Chief Justice John Roberts, during his 2005 confirmation hearings