I guess JusticeRoberts wanted to be a part of Georgetown society more than anyone knew. John Roberts arrived in Malta yesterday. Maybe we will get lucky and he will stay there.
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His clothes looked crisp, though his face was haggard. He was as exhausted and distressed as he had been in years.
Roberts had left behind a storm in Washington over his opinion upholding President Barack Obama's health-care overhaul -- the Affordable Care Act -- a stunning validation of Obama's signature domestic achievement that transformed public perceptions of the chief justice.
Republicans in Congress had been fighting the law dubbed Obamacare at every turn for two years, and all the GOP presidential candidates in had vowed to repeal it.
And now Roberts, a nominee of President George W. Bush, had saved it. Going forward, the chief justice would be viewed with skepticism by conservatives, despite also having taken the lead on limiting racial remedies and voting rights, helping roll back campaign finance regulations and voting for stronger Second Amendment gun rights. Read More. Roberts' moves behind the scenes were as extraordinary as his ruling.
He changed course multiple times. He was part of the majority of justices who initially voted in a private conference to strike down the individual insurance mandate -- the heart of the law -- but he also voted to uphold an expansion of Medicaid for people near the poverty line.
Two months later, Roberts had shifted on both. The final tallies, to uphold the individual mandate and to curtail the Medicaid plan , came after weeks of negotiations and trade-offs among the justices. The ACA, signed by Obama in , followed decades of failed attempts in Washington to control spiraling medical costs and provide Americans with higher-quality health care. It created a marketplace where the uninsured could buy coverage and protected people from being unable to get health insurance because of pre-existing conditions such as diabetes, cancer and other chronic illnesses.
To support the system and draw in the healthy as well as the sick, the law required that most uninsured people obtain coverage the "individual mandate" or pay a penalty, to be collected as part of an individual's annual taxes -- a provision critical to the final ruling. The law also expanded Medicaid benefits to a wider range of needy individuals. Conservatives are associated with two methods of interpretation: originalism and textualism.
And so this brings us to the question at hand: What is the judicial philosophy of John Roberts? As the case wound its way through the courts, it became clear it would be decided in the run-up to the presidential election and became a flashpoint for both sides. After oral arguments in March, CBS News reported , the chief had sided with his conservative colleagues, wanting to strike down the mandate. He switched his vote. He announced the opinion of the court in June — just over four months before the presidential election.
His majority opinion upholding the law was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — his first time siding with the four Democratically appointed justices in a decision — but his reasoning stunned even the closest court observers. Roberts wrote that Congress did not have the power to compel people to buy health insurance under the commerce clause but that the mandate was a lawful exercise of their taxing power, despite Obama himself denying that the mandate was a tax back in The outrage from the right was immediate and it burned hot.
Under the Constitution, judges have power to say what the law is, not what it should be. In , he voted with the conservative dissenters to uphold a Texas law that would have restricted access to abortion facilities in the state.
But then he refused to allow the Trump administration to add a citizenship question to the census or roll back the Obama-era Deferred Action for Childhood Arrivals executive order, holding that the Trump administration had failed to give clear enough reasons for the rollback in its rescission letter and that it would need to issue a new letter.
The law becomes whatever that one wants it to be. Predicting the outcome of cases became even harder. In the run-up to the election, Roberts seemed to be hedging his bets, assuming he was just as likely to be the chief of a liberal majority court as a conservative one. He certainly looked prescient. But the shadow of John Roberts loomed large in the judicial selection process for the Trump administration. Once Anthony Kennedy retired, Roberts would be the swing vote and so the pick to replace Kennedy needed to be reliably conservative but also able to woo Roberts.
Someone like Brett Kavanaugh. And it seemed to be going to plan. In that first year, they joined with the conservatives to uphold partisan gerrymandering and they joined with the liberals to stay the execution of a Buddhist man who wanted his spiritual adviser to be present — arguably a win for religious liberty even if it was a liberal one.
But when liberal icon Ginsburg died on a Friday night in September , everything stopped in Washington. But sadly, over recent years more and more, Chief Justice Roberts has been playing games with the court to achieve the policy outcomes he desires. In the most recent term, Roberts has been in the majority in all 11 cases in which the court was split , Feldman found, and in the majority in 52 of 53 total rulings.
Legal analysts warned that no one should mistake Roberts for a reborn progressive. In Citizens United v FEC , the Roberts court opened political races to a flood of money from anonymous donors with narrow agendas and bottomless pockets. Justices Neil Gorsuch and Brett Kavanaugh concurred, but would have required the prosecutor to show a specific need for the information; Justices Samuel Alito and Clarence Thomas dissented, and would have required an even higher standard.
In Trump v. In both Vance and Mazars , Roberts rejected the broad positions of the Trump administration and its investigators, and persuaded a majority of the court to accept a narrower, intermediate position.
In doing so, Roberts successfully balanced the interests of the president, Congress, and the courts, while avoiding making the Court a partisan friend or foe of the president, just as Marshall did in his conflicts with Jefferson. Although complete unanimity eluded Roberts in the subpoena cases, the Court achieved it in another politically charged decision, Chiafalo v. In two 7—2 religious-liberty cases, two liberal justices were willing to join the conservatives in decisions that were narrower than some of the conservatives would have preferred.
In Little Sisters of the Poor , Justice Thomas wrote for the Court that the Departments of Health and Human Services, Labor, and the Treasury had the authority under the Affordable Care Act to exempt employers with sincere religious or moral objections from providing contraceptive coverage.
When we spoke years ago, Roberts emphasized that he was more interested in institutional legitimacy than methodological purity.
Roberts himself is not always a textualist.
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