Roberts court surprises observers on left and right

Conservative court carves big liberal victories

The justices of the US Supreme Court.
Larry Downing/REUTERS
The justices of the US Supreme Court.

WASHINGTON — Democratic Senator Dianne Feinstein predicted “people are going to lose rights’’ if the Senate installed John Roberts as the Supreme Court’s chief justice. Democratic Representative John Lewis cautioned that a Roberts court would “no longer hear the people’s cries for justice.”

That was 2005. One decade later, the legacy is looking a little different.

The Supreme Court’s three highest-profile decisions since Roberts became the top justice were all decided in favor of liberals: It rejected two challenges from the right to President Obama’s Affordable Care Act, including one on Thursday, ensuring 6 million people would keep their health care.


On Friday, albeit over Roberts’ strenuous objection, the court granted same-sex couples the right to marry, affecting many millions more.

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This record has left conservatives spitting fire about a Republican Supreme Court pick who betrayed their cause. Democrats, meanwhile, celebrated in the streets of Washington for two straight days, as Obama is suddenly on a winning streak.

But those who watch the Supreme Court closely say Roberts, appointed by George W. Bush, is more legal technocrat than ideologue. The Roberts court, they say, is guided by the law no matter where it leads and steers clear of politics.

It’s a philosophy that can bring unpredictable results. The same court also struck down gun-control laws in Washington, opened the floodgates to unlimited campaign spending, and erased a mandate that some companies provide women with contraceptive coverage.

“It’s trying to bring back the classic view of what law is,” said Neal Katyal, a law professor at Georgetown University who was acting solicitor general under Obama.


In doing so, he said, the court is pushing back against a view that had been more popular among legal scholars in recent years — that “judging is just politics,” and all judges really do is impose their political views in their rulings and call it law.

The message of the two health care rulings, in which Roberts twice saved the law from potentially devastating legal challenges, is that “the law really means something, it has a core, and it might mean that I’ll have to uphold laws like the Affordable Care Act whether I like it or not,” Katyal said.

Likewise, he said, the message of Friday’s marriage ruling is that “it’s not our job in interpreting law . . . to opine on the wisdom of same-sex marriage.”

Both of the legal challenges to the health care law were brought from conservative groups that pushed forward shaky legal theories, said Kent Greenfield, a law professor at Boston College.

“He’s almost like a really smart law student,” said Greenfield of Roberts. “The Obamacare decision was an ‘A’ answer. You take a look at the statute as a whole.”


Greenfield clerked for David Souter, another Republican-appointed justice who bitterly disappointed the right when he didn’t reliably side with the court’s conservative bloc.

“Like David Souter, Roberts has ended up making decisions that look liberal at times,” Greenfield said. “Both are very personally conservative. Neither one of them is an ideologue.”

The gay marriage decision, in which Roberts dissented, illustrates another trend of the court: The vital role played by Justice Anthony Kennedy, who was appointed by Republican President Ronald Reagan.

Kennedy voted with the majority 86 percent of the time, according to data kept by SCOTUSblog, an online outlet that closely tracks the Supreme Court.

In 5-to-4 decisions, Kennedy has voted with the majority more than any other justice each year.

“Given his swing vote, the ‘Roberts court’ has actually been the Kennedy court,” said Randy Barnett, a Georgetown University law professor who has argued before the current Supreme Court.

Legal scholars cautioned that the court hasn’t shown consistent ideological themes across different issues.

“The court is about as deeply divided as the country on the hot-button issues of race, sex, and religion but is more lawyerly and nonideological than the talking heads tend to believe on just about everything else,” said Laurence H. Tribe, a professor of constitutional law at Harvard Law School.

To the extent that Roberts has disappointed conservatives, Tribe said that it might be the Republican Party — not their 2005 appointee — that has changed.

“The GOP has been moving rightward at a fairly rapid clip on most of the social issues while the Court has remained relatively centrist on everything except issues of LGBT rights, where it has moved leftward, but at a more measured pace than much of the country,” Tribe said.

The legacy of the Roberts Court includes decisions that liberals hate. Chief among them is the 2010 Citizens United ruling that ushered in an era of unlimited campaign spending.

The philosophical underpinning to the decision, however, is consistent with a Roberts doctrine: Hewing to the law with little thought to the broader political landscape.

“Citizens United works intellectually, but it exhibits an obtuseness about how politics really works,” said Greenfield.

Others simply view the court as producing a fairly scattered record.

Ilya Shapiro, a senior fellow at the libertarian Cato Institute, said the court’s record has “something for everyone” and that its record on issues of personal liberty in this term has been “all over the place. I’m left kind of scratching my head.”

The vocal critic of the health care law blasted the decision to uphold the law’s subsidies, for example. But he praised the same-sex marriage ruling as “a victory for equal liberty,” saying it was a clear statement that “the government has no reason to treat same-sex and opposite-sex couples differently.”

Now, Shapiro said, “I’m hoping that people are thinking through the question, ‘why is government involved in marriage in the first place?’ ”

This difficulty guessing what an overarching theme would be in a Roberts court was evident to some a decade ago. At the end of a day of confirmation hearings, Joseph Biden, then a Democratic senator, mused about how he should vote.

“My question is, ‘Is Justice Roberts going to be a Scalia, a Rehnquist or maybe a Kennedy?’ ” Biden said. “If I think he’s going to be a Justice Scalia, who I like personally very much, I vote no. If I think he’s going to be a Kennedy, I vote yes. If I think he’s going to be a Rehnquist, I probably vote yes, because it won’t change anything.’’

Biden voted no.

Swing decisions

John Roberts and Anthony Kennedy were appointed by Republicans. However, they have sided with liberals on several landmark cases and sometimes delivered the Courts opinion, an indicator of a justice with strong feelings on the case. How they swung on key cases:

Conservative ruling
Liberal ruling
Delivered opinion of Court
Massachusetts v. EPA (2007)Liberal justices chastise EPA on greenhouse gases. Kennedy (left) sides with them, while Roberts (right) dissents.
Gonzales v. Carhart (2007)Ban upheld on partial-birth abortions.
District of Columbia v. Heller (2008)Roberts and Kennedy in conservative majority on guns.
Citizens United v. Federal Election Commission (2010)Campaign finance floodgates open in landmark decision.
McDonald v. Chicago (2010)Roberts and Kennedy in conservative majority on guns.
National Independent Federation of Business v. Sebelius (2012)Roberts joins liberals in upholding Affordable Care Act.
Windsor v. US (2013)Kennedy sides with liberals on gay marriage.
Hollingsworth v. Perry (2013) Roberts sides with liberals on gay marriage.
Town of Greece v. Galloway (2014)Conservatives take vote on prayer before town meetings.
Burwell v. Hobby Lobby (2014)Ruling allows exception to birth-control insurance requirement.
King v. Burwell (2015)Roberts, Kennedy uphold ACA, joining four liberal justices.
Obergefell v. Hodges (2015)Kennedy sides with liberals on gay marriage rights.


Luke Knox/Globe Staff

Annie Linskey can be reached at Follow her on Twitter @AnnieLinskey.