Chief Justice John Roberts cast the deciding vote to uphold the Affordable Care Act, President Obama’s signature piece of legislation and a cornerstone of his first term in office. In light of this historic Supreme Court decision, the question remains as to whether this is a one-shot deal on the part of a strictly conservative jurist, or whether he will evolve on the court in the manner of former Chief Justice Earl Warren.
Warren, an Eisenhower nominee to the high court, became far more liberal than expected. His court was responsible for the school desegregation decision in Brown v. Board of Education (1954), and Loving v. Virginia (1967), which struck down remaining anti-miscegenation laws. Warren also mandated publicly-funded legal representation for indigent defendants, kept prosecutors from using illegally obtained evidence, and required that those who are in police custody be read their rights, also known as a Miranda warning.
theGrio slideshow: Supreme Court cases that shaped black America
The jury is still out on Roberts, but before we consider him a new reliable swing vote or a conservative-turned-liberal justice, consider the evidence that this was nothing less than a political move on his part.
The news was leaked to the media — possibly by way of Justice Clarence Thomas — that Chief Justice Roberts changed his mind on the so-called ‘Obamacare’ law, and changed his vote.
Conservative reactions to his deciding vote have ranged from sadness and a sense of betrayal to cognitive dissonance and calls for impeachment. This was not supposed to happen, after all, given that Roberts was firmly planted in the conservative bloc of the Supreme Court, a legacy of the George W. Bush years.
Donald Trump — who seems to have an opinion on everything and reminds the public often — called Roberts a “dummy” for a decision that “makes no sense.” And Trump accused Roberts of being unduly influenced by the media. “I think that Roberts was reading the Washington Post and New York Times and he said, ‘I could come out like a hero if I do what everybody expects me not to do.’ I think he should be ashamed of himself,” Trump said on CNBC.
In addition, Pat Buchanan commented that Roberts is “moving on up” and making a career move to gain acceptance as an independent thinker among the Washington “cognitive” elite. “John Roberts aspires to be a man of history, to have this court known to historians as ‘the Roberts Court.’ And if there is to be a decisive vote in future great decisions, he wants that vote to be his,” Buchanan wrote.
Buchanan added that “John Roberts likely has ahead of him a quarter of a century as chief justice. If he wants to be written of as another John Marshall or Oliver Wendell Holmes, and not Roger Taney, he must pay the price the city demands. If he does not wish to be remembered as a tea party justice, he must deliver the goods. And John Roberts just did.”
Now, few in the black community care much about what either of these men will say next. And yet, Trump and Buchanan make a valid point, which is that Roberts was likely influenced by politics.
Since Bush v. Gore and the selection of the president by the Supreme Court, it has been a downhill slide for the nation’s ultimate judicial body — in the court of public opinion, that is. The watershed ruling in Citizens United — which opened the floodgates for unlimited money in elections — only solidified the growing public sentiment that the court is dominated by partisan political hacks, on the take and in the pockets of rich and powerful interests. That Justices Thomas, Scalia and Alito attended fundraisers by the Koch Brothers and other blatantly political events creates a conflict of interest, and undermines any presumption that these justices are fair and impartial.
It is no wonder that public approval of the Supreme Court stands at historic lows, with a majority of people believing the justices make their decisions based on ideology rather than the law. One recent poll had approval of the court at 44 percent, down from a high of 66 percent in the late 1908s, and 50 percent in 2000.
Judges are people, too. They have their own “opinions” outside of the opinions they (and their law clerks) write. And they read the newspapers, and they see the protests that take place regularly on the courthouse steps.
Citing his nuanced votes upholding Obamacare and striking down important aspects of Arizona’s immigration law, some legal observers have described Roberts as a pragmatist. To be sure, Roberts has called for consensus and judicial modesty on the bench. However, a number of his recent decisions shatter that notion, including striking down the Montana law setting limits on corporate campaign finance. Then there was his dissent in the recent court opinion that struck down mandatory life without parole for juveniles. Further, the chief justice has only twice broken a tie by siding with the liberal justices.
It is plausible that Roberts’ Obamacare decision was strategic, that he will use this as an insurance policy to shield him from critics who accuse him of political partisanship. Such a strategy could serve him well, given the upcoming challenges to the Voting Rights Act, bans on gay marriage and affirmative action at the University of Texas. The justice has already expressed opposition to affirmative action in government programs.
If Chief Justice Roberts resumes his place among the conservatives on the Supreme Court, it will not come as a surprise. On the other hand, maybe he is evolving into a liberal. And maybe President George H. W. Bush was right when he said Clarence Thomas was “the best man” for the job.
Follow David A. Love on Twitter at @davidalove