http://dyn.politico.com/printstory.cfm?uuid=416169BD-0C77-4CCD-A10B-5386071F4592 Conservatives fear John Roberts going soft
By: Josh Gerstein
October 18, 2014 07:00 AM EDT
Chief Justice John Roberts seems to be going wobbly again.
Conservatives, still smarting from what they view as an ideological betrayal by Roberts two years ago in the Supreme Court’s 5-4 Obamacare decision, have looked on suspiciously in recent weeks as the chief justice twice appeared to side with the court’s liberals and Justice Anthony Kennedy against the court’s conservatives.
When the high court issued orders last week blocking Wisconsin’s voter ID law and stopping enforcement of key parts of Texas’ new restrictions on abortion clinics, Justices Antonin Scalia, Clarence Thomas and Samuel Alito publicly dissented. Roberts was notably silent.
Taken together, Roberts’ actions seem to be contributing to a kind of buyer’s remorse that could result in even more pressure for ideologically pure nominees.
During his confirmation hearings, Roberts presented himself a strict interpreter of the Constitution and compared a judge’s role to that of an umpire calling balls and strikes. President George W. Bush was so confident in Roberts’ conservative bona fides that he appointed him directly to the post of chief justice.
“I think there are a lot of conservatives who feel like, instead of calling the balls and strikes, he’s kind of ducking when possible,” said Carrie Severino of the conservative Judicial Crisis Network. “There certainly seems like a more consistent pattern on the part of Scalia, Thomas and Alito of being really conservative to the core.”
Morris Davis, a liberal lawyer and former Guantánamo prosecutor, was more blunt in a tweet posted just after the Texas abortion order: “[Chief Justice] Roberts isn’t going to get invited to the tea party this year.”
The abortion and voter ID orders on which Roberts parted ways with his conservative colleagues came just days after the Supreme Court surprised many observers by punting on the issue of gay marriage, rejecting seven petitions asking the court to decide whether the U.S. Constitution guarantees the right of same-sex couples to marry. Since only four justices were needed to take any one of the cases, some suspected that Roberts chose not to accept any of the petitions in order to steer the court away from the contentious social issue.
“It would be in character for Roberts to do this,” Chapman Law School Professor John Eastman said. “I find it hard to believe Thomas, Alito and Scalia wouldn’t vote to take it. … The only thing that makes sense is Roberts didn’t vote to grant certiorari and the other justices were happy to allow this thing to be decided by default.”
This assessment of Roberts troubles conservatives who want to see more ideological stringency and evokes the memory of GOP-appointed justices such as Sandra Day O’Connor and John Paul Stevens, who moved in a more liberal direction over their decades on the court.
“People who are concerned that we’re seeing the same old pattern again, I guess have reason to be concerned,” said Curt Levey of the conservative Committee for Justice.
“If people are concerned that there’s a slow drift to the left, that’s a valid concern, because that’s usually how it happens,” Levey added. “It’s about 50-50 that a Republican judge or justice will remain anything like a Republican.”
In addition to his position on cases before the court, Roberts has publicly been taking a less partisan tone. Recently, he decried political polarization and expressed concern that it could affect the court.
“Justice Scalia, I think, was confirmed unanimously. I think Justice [Ruth Bader] Ginsburg was confirmed unanimously. Neither one of them would have a chance today,” the chief justice said last month during an appearance at the University of Nebraska. “That doesn’t make any sense. That’s bad for the judiciary.”
While the high court’s actions over the past couple of weeks were enough to cause conservatives to cast a wary eye Roberts’ way, it’s hard to say precisely what the chief justice was up to. In the Wisconsin voter ID and Texas abortion cases, the court did not rule on the merits but simply issued emergency orders reversing appellate courts.
In fact, while Scalia, Alito and Thomas publicly dissented from both high court actions, one can’t say for sure that Roberts disagreed with them or voted with his liberal colleagues. All that can be said for certain is that the chief justice passed up the chance to sign onto the conservatives’ public dissents.
SCOTUSBlog publisher and Supreme Court litigator Tom Goldstein said it’s a “fair inference” that Roberts didn’t vote as his conservative colleagues did on the Wisconsin voter ID and Texas abortion cases.
However, Severino said it’s possible Roberts simply didn’t see any point in joining the dissents, or that he wanted to dampen views that the court is polarized.
“He seems to like the idea of trying to build unanimity when he can, so highlighting — unnecessarily — dissension seems like something he would shy away from,” she said.
Goldstein cautioned against assuming that because Roberts voted for temporary stays in favor of the Wisconsin voter ID measure and against the Texas abortion restrictions, his views on those issues have changed or moderated.
“His legacy on those questions will be in the [ultimate] decisions, not in the stay applications,” Goldstein said. “I don’t think pro-choice activists would be wise to take heart and think there’s now a 6-3 majority against the Texas law.”
And conservatives grumbling about the court’s unwillingness to take up the same-sex marriage issue have to acknowledge that, if Roberts decided to back away from those cases for fear of a high-profile fight on the subject, his fellow conservatives also chose to remain silent. Any of them could have dissented publicly from the court’s decision not to weigh in, but none did.
There are many other places where Roberts also hasn’t completely parted company completely with his conservative brethren, even on orders in different election cases. When the court split 5-4 to approve Ohio’s plan to cut early voting by a week, Roberts joined with the court’s four other Republican appointees to create a majority. And in disputes relating to same-day registration in North Carolina and voter ID in Texas, he apparently joined with the conservative wing and Kennedy as well as one or more of the Democratic-appointed justices.
There’s also no denying that Roberts has continued to stake out strongly conservative positions in some cases, like the landmark ruling he authored last year striking down a key provision in the Voting Rights Act.
Harvard law professor Larry Tribe said he didn’t think Roberts was engaged in “a conspiracy to move the court toward to the middle,” but that it was indisputable that he’s more centrist than most of his Republican-appointed colleagues.
“He’s more ideologically moderate. His views are not as sharply to the right on some of the most explosive issues,” Tribe said. “It’s supported by the profile of his judicial history.”
