On June 28, 2012, the media bustled once again with news of the Supreme Court. The Court had released its long-anticipated verdict on the Affordable Care Act case. But one thing was markedly different about the reporting produced that day; the phrase “Roberts Court,” in lieu of “the Supreme Court” or “SCOTUS,” presented itself as a deliberate word choice among journalists and Court reporters.
The “Roberts Court” stood as a symbol of bipartisanship, an independent judiciary, and political genius on the part of Chief Justice John Roberts on June 28, 2012. Roberts had joined the four liberals on the Court, making a 5-4 decision in favor of saving the healthcare bill. Public reception made it seem as if the Roberts Court had ended its identity crisis and had finally found its own unique brand and voice.
However, to expect a unified or less conservative Court in the future based on the example of the Affordable Care Act case is still quite premature. The current Supreme Court, known as one of the most conservative Courts in American history, still remains just as conservative and fractured as its case record shows.
Moreover, while Roberts’ politically astute decision showed his interest in protecting the Court as an institution, there is no indication that the clear ideological divides among the four conservatives, four liberals, and one “swing” vote on the court have frayed in the interest of a more unified or unique voice that would be able to define the Roberts Era. Indeed, we have yet to figure out what the “Roberts Court” really is.
The Most Conservative Court in Decades
Today’s Supreme Court stands as one of the most conservative in the nation’s history. The Affordable Care Act case was the first case in which Justice Roberts sided with the Court’s liberals, out of more than one hundred cases decided under his leadership. According to Erwin Chemerinsky, the dean of UC Irvine School of Law, Justice Anthony Kennedy, who often acts as the “swing vote” in a court almost evenly divided into one conservative and one liberal bloc, has sided with the conservatives twice as often as with the liberals.
Adam Liptak, Supreme Court correspondent at the New York Times, told the Harvard Political Review that in political scientists’ ranking of justices, four of the six most conservative justices of all time are sitting on the Court today, with Justice Kennedy, the swing vote, trailing not far behind. According to a study by Richard Posner, a judge on the Seventh Circuit Court of Appeals, and William Landes, a law professor at the University of Chicago, the six most conservative justices on the Court over the past 75 years have been, in order, Clarence Thomas, William Rehnquist, Antonin Scalia, John Roberts, Samuel Alito, and Warren Burger.
Richard H. Fallon, a professor of constitutional law at Harvard Law School, attributed the striking conservatism of today’s Supreme Court to the historical shift in public opinion to the right. Fallon told the HPR that in the Nixon era, the Republican Party seemed to be to more interested in slowing down rather than fully stopping the expansion of government. However, in the decades since Ronald Reagan was elected in 1980, according to Fallon, American electoral politics has moved far to the right, and the Court has followed with it.
Roberts, at age 58, is likely settling in for a long tenure at the head of the Supreme Court. In his first five years, the Court issued conservative decisions almost sixty percent of the time, including those on campaign finance, illegal immigration, and gender pay equity. There was little doubt that the Court was carving out a solidly conservative legacy for itself, until the unexpected turn of events in the healthcare case.
Best of Both Worlds
On the day the Court issued its opinion on the Affordable Care Act, Adam Winkler, a law professor at UCLA, published an article on the Huffington Post titled “The Roberts Court is Born” and the Los Angeles Times similarly reported, “Supreme Court becomes Roberts Court in year of surprises.” Almost unanimously, the media praised Roberts for his feat of avoiding the political disaster of striking down the President’s signature legislation, and at the same time abiding by his constitutional philosophy.
By focusing on Congress’ taxation authority instead of the Interstate Commerce Clause, Roberts upheld the most controversial provision of the Affordable Care Act, the individual mandate. Roberts wrote from a perspective of judicial restraint, saying in his opinion, that because “the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
However, Roberts’ siding with the liberals was far from an act of concession. Lyle Denniston, a writer for SCOTUSblog who has been covering the Supreme Court for more than fifty years, told that HPR, “I don’t think anybody should draw from the healthcare case that he isn’t as deeply conservative as he is … His decision does really impair the ability of Congress to regulate commerce and regulate behavior of people and of consumers. I think Roberts made a great advance for conservative philosophy taking that stand.” Indeed, the decision to use the taxation clause showcased Roberts’ efforts to ensure a lack of precedent for the Interstate Commerce Clause to serve as justification for a governmental mandate.
Although Roberts’ decision certainly did not signify a shift in ideology, it did showcase his commitment to upholding the legitimacy of the Court by steering it away from the popular view that justices vote according to their political ideologies instead of constitutional principles. To this effect, Roberts kept true to the statement during his confirmation process that he would pursue narrow decisions that can kindle broad coalitions among justices. Meanwhile, the healthcare case drove a significant dent in the Court’s conservative trend, leaving the public confounded on what exactly its vision of a “Roberts Court” should be.
Searching for a Pattern
Though Roberts did set a clear example of bridging gaps through his maneuvering in the healthcare case, the Court is still far from developing a unique voice that the group of nine can collectively call its own. If the Affordable Care Act case gave any image of a more liberal Court, one must remember that there are other important aspects to take into account, such as the fact that this case carried special political weight and public relations dilemmas as the signature legislation of the President’s administration.
And while many heralded the healthcare decisions as the triumph of the liberal media, history showcases—in light of the Founders’ desire for the Court to limit outside pressures—the incredibly minuscule amount of influence the media actually has on the justices. Denniston told the HPR that while all justices are all concerned about their public reputations, he doesn’t think “that any justice is going to pare down [his or her] perception of what is the right juridical outcome in order to avoid controversy.”
It is also important to note that the Affordable Care Act case was mostly a one-man show. Roberts saved the legislation from being struck down by the independent and unilateral action of siding with the liberals alone, producing a 5-4 decision with all of the four remaining conservatives on the other side. The case eventually produced, aside from the majority opinion, two concurrences and two dissents, with Justice Ginsburg writing her own mix of a concurrence and a dissent on the side. Although this serves as proof of the complexity of the Court’s wise maneuvering of the situation, it also shows a Court divided into factions.
The Affordable Care Act case serves as a reminder that the current Court is still highly inflexible and rigid along its ideological divides, and that these lines are far from porous. If the Court currently has an identity at all, it is not one shaped with equal contributions from the nine justices; rather, based on its history, it is one molded by its four conservative justices and solidified by Kennedy’s frequent association with this bloc.
Looking Ahead
Joshua D. Hawley, a law professor at the University of Missouri School of Law and a former clerk of Chief Justice Roberts, commented on this highly disunited characteristic of the current Court. “Chief Justice Roberts came to the court with the hope of reducing the acrimony among justices,” he explains, but the Court today stands “deeply fractured” because while it might functionally appear center-right, that’s only “because no one bloc has enough votes.”
For now, those who called Roberts a “traitor” for his unexpected vote in favor of the Affordable Care Act shouldn’t worry. The current Court has a solid conservative history that will likely continue into the future unless active efforts are made to soften ideological lines and avoid 5-4 decisions that split the Court into its predictable halves.
During President Obama’s first term, the Court experienced a significant change in its demographics, welcoming justices Sonia Sotomayor and Elena Kagan to take the places of David Souter and John Paul Stevens, respectively. Now that the Court has settled in terms of its membership, it will start to face the challenge of building a unique voice and legacy greater than the fractured ideological positions of its justices.
The Court has a number of high-profile cases set to be heard in coming months, including some in which the Court will need to discuss topics as controversial as affirmative action and gay rights. Undoubtedly, it will be a critical opportunity for the Court to start building its legacy and, potentially, unified voice.