June 26, 2012
By: Josh Gerstein
Chief Justice John Roberts pledged during his Supreme Court hearings to be a mere umpire of the law.
But as a legacy-defining decision nears, Roberts is emerging as the court’s most intriguing player.
Justices are expected to rule Thursday — during their final public sitting of the term — on the fate of President Barack Obama’s signature health law. While much of the early attention focused on swing-vote Justice Anthony Kennedy, many court watchers predict Roberts will be the architect of the ruling.
To a great extent, the decision will shape the way history views Roberts’s stewardship of the high court . . .
A political science professor at Southern Methodist University, Joseph Kobylka, also said Roberts’s role in the immigration case might have some implications for the health care ruling.
“The Arizona case is obviously about federal power, though in a different area,” Kobylka said. “I don’t have a real good sense of how this is going to pan out — I don’t think anyone does — but the fact that he was in the majority in the Arizona case speaks to me either of a more general deference to federal power or a strategic sense, either of which would favor [upholding] the health care policy.”
When the chief justice is in the majority, he assigns the writing of the majority opinion — or he can reserve that duty for himself, giving him a bit more power than the other justices to influence the scope of a ruling.
One challenge Roberts has faced: Conservative decisions are almost always the ones faulted as partisan, at least recently. In the past couple of decades, liberal-leaning decisions have by necessity been bipartisan, since a majority of the court’s justices have been Republican appointees and the liberal justices lack the votes to resolve cases without some support from their more conservative colleagues.
Kobylka said Roberts sometimes seems to vote with the majority to narrow the court’s holding or to avoid ambiguity in the court’s rulings.
“It is not inconceivable that Roberts voted strategically and assigned [the immigration opinion] to Kennedy to have the narrowest possible opinion written given the configuration of forces on the court,” Kobylka said. “Assuming strategic behavior, he will jump to the winning side to create the smallest wake of the decision. That’s the possible connection with the health care case. … In a close call, Roberts has to weigh the prestige of the court, his legacy, if that’s a concern for him, and where the court enters the political fray.”
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