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Roberts’s role sparks questions about legacy

By Brian C. Mooney
Globe Staff / June 29, 2012
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The decision of usually conservative Chief Justice John G. Roberts Jr. to join the court’s moderate to liberal bloc to uphold the politically explosive health care law of 2010 could define a court he may lead for years, even decades, to come.

The high court has been viewed increasingly as merely another partisan-riven institution of government, causing it to suffer diminished public esteem, according to polling data. That despite Roberts’s declaration during his 2005 Senate confirmation hearing that he would be the ­equivalent of an umpire, applying the law, not making it.

Constitutional law scholars said Thursday that Roberts’s decision to become the decisive fifth vote in a historic ruling counters a perception in some quarters of the court sliding toward political activism.

“I think this term was the turning point in the legacy of John Roberts,” Harvard law professor Laurence H. Tribe said in an ­e-mail to the Globe. “He now has a chance to be a truly great chief justice. Of course, he ­dissented in some of the liberal-leaning decisions of the current largely conservative court, but when push came to shove he was where he needed to be.”

Tribe, who taught Roberts and President Obama at ­Harvard Law School, said ­Roberts’s decision to become the swing vote in a 5-4 decision “saved the day — and perhaps the court.”

“It’s kind of an act of leadership rather than an act of ideology,” said Joel B. Grossman, a Johns Hopkins University professor who teaches and writes about the Supreme Court. “I can’t imagine his sympathies were with expanding congressional power, but I think he recognized that there might even be a crisis if he cut this law off at the knees.” Grossman said the decision halts, at least for now, what he described as a rightward drift of the Roberts court.

“He is going to be chief for a long time and one thing you don’t want is to lose control of the court,” he said. “This fits the model of wanting to keep the court together and perhaps even to approve something he personally found distasteful.”

The Citizens United decision in 2010 that cleared the way for corporations, labor unions, and individuals to spend unlimited amounts on so-called independent expenditures in political campaigns is often cited by court critics as emblematic of a conservative tilt.

“I think this is the week when it really became the ­Roberts Court,” said Erwin Chemerinsky, dean of the University of California Irvine School of Law. “He established himself as an ideologically independent presence on the court and wrote the decision on the most important case in his seven years as chief justice in a way that didn’t fit an ideological predilection.”

“The bottom line is that had the court struck down this law, it would have been the first major piece of social welfare legislation invalidated in 75 years,” Chemerinsky said.

His willingness to strike an alliance with the court’s more liberal justices helps distinguish the court from the party-line rancor of Congress.

“Nearly everybody thought Justice [Anthony] Kennedy would cast the deciding vote,” said David D. Cole, professor at the Georgetown University Law Center, “because Justice Roberts has been a more consistently conservative vote whereas Justice Kennedy has been viewed as sometimes voting with the moderates.”

“One explanation might be that [Roberts] had his eye not only on the constitutional questions but also the broader legitimacy of the court,” Cole said. “Had the court struck this law down on another 5-4 decision of the Republican majority, it would have been seen as another Bush v. Gore [in 2000], another partisan decision in which the court’s members took predictable sides.”

“We are certainly a divided society, and Congress is basically dysfunctional because of the partisan divide,” Cole said. “The court has not become dysfunctional, but that’s in part because of cases like this where the justices don’t vote on party lines but look at the law and the precedent.”

Moreover, Cole said, in the term that ended Thursday, “on a surprisingly large number of decisions, this very conservative court reached a decision that favored the liberal position.” Besides health care, he cited several cases, including the Arizona immigration law ruling Monday, in which Roberts was part of a 5-3 majority that struck down most of the law and the unanimous decision that upheld but cautioned the state about enforcing the central provision, which allows law enforcement officers to check the immigration status of persons they arrest or detain and have reason to believe are in the country illegally.

While many academics, particularly those with liberal sympathies, applauded Roberts’s decision on the health care law and its affect on the court’s public image, those who opposed the measure were puzzled by the chief justice’s decision. Complicating matters was the fact that the case was decided based on Congress’ taxing power and not its authority under the commerce clause, as most pundits and legal observers had anticipated.

“I will scratch my head somewhat on why he decided to do it under the taxing clause, which is more limited than the commerce clause,” said Ilya Somin, a law professor at George Mason University.

Roberts, 57, actually sided with the other conservative justices to opine that Congress exceeded its authority under the commerce clause with its mandate that those individuals who could afford health insurance must purchase coverage or face a financial penalty. At the very least, that sent a message that though he upheld the law on other grounds, Roberts sees a limit on congressional mandates.

“Even the federal government didn’t argue much” on the taxing grounds, Somin said. “It was clearly the weakest of the three arguments they made.”

“One can easily assign a political or other motive to it; that perhaps he wanted to find some way to uphold the law even if it was a stretch,” Somin said. “But you have to give the man the benefit of the doubt and say he believes what he is saying.”

Brian Mooney can be reached at bmooney@globe.com

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