We know that Justice Roberts is conservative -- very conservative; Citizens United conservative; limited commerce clause conservative. But after the ACA ruling, I remembered that only three Justices remain from the Bush v. Gore majority, and Roberts is not one of them.
And maybe that's what distinguishes Roberts from Thomas, Scalia and Kennedy. Bush v. Gore was a traitorous decision because the majority used a rationale that it had specifically rejected in every previous case -- equal protection. To reach the result they wanted, they turned their very own jurisprudence on its head. And to add to that treachery, they wrote that the precedent could not be used in other cases -- itself an unprecedented Supreme Court ruling. So if, e.g., in a voter ID case, the state law challenger makes an equal protection argument, the Bush v. Gore majority will say that their own precedent cannot be used.
At the time of the Alito and Roberts confirmation hearings, I wanted the committee to ask them what they thought of Bush v. Gore, because I view that case as a litmus test for integrity. It's one thing to be a conservative, another to be a traitor to the Constitution and your own opinions.
Of course, they would not have answered, but I still wish they had been asked, if only to remind people of the villainy of that decision.
Based on the ACA decision, I believe that there's a 70-30 chance that Roberts would have not joined the Bush v. Gore minority. He apparently cares about the way the Court is viewed in historical perspective. He apparently is not willing to turn his own precedent upside down to reach a particular result. (Alito -- probably would have been in the Bush v. Gore majority.)
I suppose it's a low bar -- not stooping to the Bush v. Gore majority. But these days, you take what you can get.
What do you think?