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When the news broke that John Roberts had provided the key fifth vote to uphold most of the Affordable Care Act, the reaction across the political spectrum was shock, tinctured with either gloating (on the left) or outrage (on the right). Glenn Beck called him a coward; Think Progress called him a savior. His decision was seen as courageous or craven, unbiased or political, depending on how, exactly, one had wished him to vote. Inside scoops told of his last-minute about-face, his alleged behind-the-scenes betrayal, his alienation of his conservative colleagues. Everyone was looking for the story behind the story, the key to his cryptic vote. Roberts’s decision, in short, seemed too judicious to be authentic.

In fact, John Roberts is neither a coward nor a savior; he is not the left’s Snape, nor the right’s Judas. What he is--at least at this stage during his tenure as Chief Justice--is a very clever man with a streak of unexpected rationality and independence, a judge with a keen eye toward his Court’s legacy, a political animal astute enough to rise above politics when the occasion necessitates it. No longer are we living in the age of the “Kennedy Court,” or even the “Bush Court.” For better or for worse, we are now living in the era of the Roberts Court.


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Those stunned into fury by Roberts’s vote on the ACA might be consoled by his overwhelmingly conservative voting record; they might also be disturbed by aberrations from it. In his second term on the Court, Roberts sided with the liberal-leaning Justices in Jones v. Flowers against the conservatives, holding that a state must give more notice than a single letter before selling a citizen’s property as repayment for his overdue taxes. Because Alito did not participate, Robert’s vote prevented the case from tying at 4-4 (and thereby falling back to the lower court’s ruling), and his decision to avoid that outcome is telling. Of course, Roberts may have simply disagreed with the conservatives in Flowers, but if this is true, it would have marked the only time, before his ACA vote, that he sided exclusively with the liberals. More likely, Roberts dreaded the possibility of a deadlocked decision--one which would create no precedent nor place Roberts’s imprimatur on this area of the law.

The theory of Roberts’s aversion to ties was bolstered by the Court’s recent ruling in Arizona v. United States, in which Roberts sided with Ginsburg, Breyer, Sotomayor, and Kennedy to create a 5-3 vote overturning most of Arizona’s recent (anti-)immigration law. Even inveterate Court-watchers did not anticipate that outcome. Surely Justice Scalia (the son of an immigrant himself) did not, and he used the opportunity to read a blistering dissent from the bench which openly criticized not only the majority, but also President Obama himself. Had Roberts sided against Kennedy and the liberals (minus Kagan, who recused herself), the Court once again would have split 4-4, allowing the Ninth Circuit’s total invalidation of the law to stand while leaving the area of state versus federal immigration policies constitutionally murky. Neither of these outcomes could have looked appealing from Roberts’s perspective, but neither did he have to join Kennedy’s opinion in full. That surprisingly broad opinion, after all, reserved significant powers for the federal government while setting the stage for an as-applied challenge to the “papers, please” provision. It was also cheerfully celebratory of immigration in the face of a law dripping with nativism and xenophobia. Perhaps Roberts signed on solely to break the tie; perhaps he was truly following his principles. Either way, he seems to have made the right decision for his legacy: the media focused primarily on Scalia’s ugly dissent, while characterizing the majority opinion primarily as moderate and nationalistic.

Moderateness is a descriptor that has long eluded Roberts, particularly after the Court’s precedent-busting decision in Citizens United, which disastrously deregulated campaign finance in the U.S. while reaching far beyond the scope of the actual case at hand. But it would not be quite accurate to label Roberts, as many liberals have, as a doctrinaire conservative who tramples on stare decisis whenever convenient. In two recent 8th Amendment cases, Roberts broke with the standard conservative line on the 8th Amendment and the death penalty, allowing for greater leniency in sentencing and demanding more cautious vigilance from the criminal justice system. In the landmark case Graham v. Florida, Roberts concurred with Kennedy and the liberals that a life sentence without parole for a minor convicted of a non-homicidal crime could constitute cruel and unusual punishment. Robert’s concurring opinion was narrow; he ruled only on the case at hand, and accused the majority of going too far in protecting minors. Yet his decision simply to concur on 8th Amendment grounds was fairly startling. Scalia and Thomas--as well as O’Connor and Rehnquist before them--have taken a consistently hard line on the 8th Amendment, disputing its proscription of all but the most heinously torturous penalties. (Thomas once asserted that it would not forbid the execution of a seven year-old child.) None of them believed it could bar the death penalty in virtually any situation; certainly they did not believe it could apply to life in prison. That Roberts was willing to apply it in this case suggests an open-mindedness to the “evolving standards of decency” developed by Kennedy and the liberals and violently spurned by Scalia and the conservatives.

Then, just this term, Roberts signed onto Ginsburg’s sharp-edged opinion in Maples v. Thomas, in which the Court held that a death row inmate did indeed experience a procedural default when Alabama declined to inform him that he had been abandoned by his pro bono lawyer, thus causing him to miss his opportunity to file an appeal. Ginsburg dug deeply into Alabama’s horrifically flawed legal and penal systems, laying the blame for the mishap directly at the state’s feet. Scalia and Thomas disagreed with the ruling altogether; Alito filed a concurring opinion absolving Alabama of any culpability. That Roberts joined Ginsburg instead was a happy ending to a tragic case, a rational and just decision that implies an ability to look beyond the hard-nosed bloodlust exhibited by his conservative colleagues.

While these life-and-death cases were a high point for Roberts, they should not overshadow the Justice’s laudable record on free speech. With a majority of the Court basically firm on the matter, it is all too easy to forget that twenty years ago, freedom of speech cases were the cause of rancorous disputes among razor-thin 5-4 majorities. Rehnquist and O’Connor seemed to believe that only commercial speech deserved serious protections, while even otherwise commendable liberals wavered on hate speech or vitriolic political speech. (Consider Stevens’s disappointing vote in Texas v. Johnson, or the liberals’ rejection of true content-neutrality in R.A.V. v. St. Paul.) With Roberts’s appointment, however, support for robust free speech protections has been set firmly in place. Roberts wrote for near-unanimous Courts in Snyder v. Phelps and U.S. v. Stevens, affirming, respectively, protections for hate speech and speech depicting animal cruelty. The uniformity of the Court in these cases obscures the fact that they were ugly and difficult and not at all popular. Roberts’s willingness to protect such odious speech should be seen as deeply admirable.

This willingness continued through the last day of the Court’s most recent term, in a decision widely overlooking in light of the health care ruling. Just before that ground-breaking announcement, the Court overturned the Stolen Valor Act in U.S. v. Alvarez, which criminalized the act of lying about receiving military medals. Roberts, along with Ginsburg and Sotomayor, joined Kennedy’s bold, eloquent opinion in full, affording full protections to untruthful speech, no matter how petty or unfavored or absurd it may be. (Breyer and Kagan supported weaker protections for falsehoods; the conservatives supported none at all.) The answer to such speech, Kennedy noted, was more speech, truthful speech; the hideousness of the lies in question served as no grounds to censor their speaker. That, after all, is the whole point of free speech: the government may not suppress one viewpoint merely because it is repellant, or even factually incorrect. It must allow the viewpoint into the marketplace of ideas, where--one fervently hopes--it will be repudiated in favor of better speech and better ideas. It is the citizens’ job to make that decision, Kennedy maintained and Robert agreed, and it is for this consistent belief, as much as his wobbly ACA vote, that Roberts should be remembered.

Yet it is undoubtedly that vote which will haunt Roberts for the rest of his career and earn him, among the right, a reputation as a turncoat. This is unfortunate for Roberts, who--aside from the aforementioned opinions--has generally stuck to his role as a conservative. His calamitously misguided votes in Citizens United, Wal-Mart v. Dukes, Knox v. SEIU, Florence v. Board of Chosen Freeholders, and a plethora of other rulings squashing individual rights and favoring the ultra-wealthy at the expense of unions and the poor should be enough to bolster his conservative bona fides for all posterity. He is no friend of liberals; he is not even a close ally of moderates. Still, those on the right should not count (or discount) Roberts as a spineless yes-man to the Republican Party. Roberts clearly wants his legacy to be more complex, less partisan that the pompous Burger or the arch-reactionary Rehnquist. He’s not Chief Justice of the Supreme Court, after all; he’s Chief Justice of the United States. That title should entail a certain amount of gravity and courage, of responsibility to protect the most deeply felt aspects of American law. It’s a title John Roberts clearly wants to earn. Whether he will or not, the jury’s still out.

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Originally posted to Humor, Politics, and the In-Between on Thu Jul 05, 2012 at 08:09 AM PDT.

Also republished by Community Spotlight.

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