In defense of the Chief

There has been quite a lot of piling onto Chief Justice Roberts lately – by Republicans.  It is almost entirely misdirected, short-sighted, and irresponsible.

This week, Senator Charles Grassley of Iowa condemned the Chief Justice on the Senate floor, referring to remarks that the Chief Justice made in February about the confirmation process being too political and suggesting that when it comes to politicization on the Court, the Chief “is part of the problem.”  Also, during the presidential campaign, both Ted Cruz and Donald Trump have taken shots at the Chief.  Trump, whose lack of understanding about the Supreme Court is becoming legendary, has criticized the Chief for his work in NFIB v. Sebelius (upholding ObamaCare’s individual mandate on taxing power grounds) and King v. Burwell (holding that ObamaCare subsidies are available to those who purchased health insurance through an exchange, whether it is a state or federal exchange).  Trump has also criticized Senator Cruz for supporting the nomination of Roberts in 2005 (before Cruz was a Senator, by the way).  Senator Cruz, rather strangely, has never robustly defended the Chief during the campaign, but has instead said that if the decision had been his, he would have nominated someone else (namely, Judge Michael Luttig of the Fourth Circuit, for whom Cruz clerked before he clerked for Chief Justice William Rehnquist).

There is, quite naturally, reason for Republicans to be angry at the Chief for his votes in NFIB and King.  But those are two cases – two – out of hundreds on which the Chief has sat during his tenure.  Never mentioned in these Republican complaint sessions is the fact that the Chief has been a reliable conservative vote in nearly every other case that mattered to conservatives.

The Chief wrote a conservative dissent in Obergefell (same-sex marriage) and also dissented in Windsor.  He has consistently voted with conservatives in the affirmative action cases, joined in upholding the federal partial-birth abortion ban in Gonzales v. Carhart, joined the conservative majorities in both major Second Amendment cases (Heller and McDonald), voted to uphold Indiana’s voter ID law (Crawford), voted to limit the scope of the Fourth Amendment’s exclusionary rule (see Herring and Davis), and has stood by the authority of the government to employ the death penalty (see, e.g., Kennedy, Baze, Glossip).  He joined in saying that President Obama’s appointments to the NLRB were unconstitutional (Noel Canning), voted against giving standing to Massachusetts in pursuing global warming-related litigation against the Bush Administration, and has written notable opinions limiting the power of the federal government and protecting the federalism interests of the states (see, e.g., Shelby County, Medellin).  The list could go on and on – these are just the ones I could come up with off the top of my head.

In the October 2014 Term alone, according to the SCOTUSBlog stats, the Chief agreed (fully or at least in part) with Justice Scalia 84% of the time, with Justice Thomas 70% of the time, and with Justice Alito 81% of the time.  In the October 2013 Term, the Chief agreed with Scalia 90% of the time, with Thomas 88% of the time, and with Alito 85% of the time.  You get the idea . . .

Again, this is a career on the Court that includes hundreds of cases, and dozens of cases involving controversial and politically-charged issues – yet the critics focus mainly on two (there are probably a few others worthy of criticism that I would add – Graham and Comstock, perhaps – but they are not well-known cases, and in any event, they do not undermine my point here).  And, for what it’s worth, even in the ObamaCare litigation, the Chief found that the individual mandate was unconstitutional under the Commerce Clause and the Necessary and Proper Clause, and he wrote the opinion finding that ObamaCare’s Medicaid expansion exceeded Congress’s powers under the Spending Clause.  So on every major issue of interest to conservatives in the individual mandate litigation, the Chief was with the conservatives on every issue but one.  Also of note, he joined Justice Alito’s opinion in Burwell v. Hobby Lobby, holding that the contraception mandate regulations for ObamaCare violated the Religious Freedom Restoration Act.

Viewed in its totality, then, this is a record that conservatives should admire, even as they wish NFIB and King had come out differently.

The Chief is not the flamethrower that Justice Scalia was.  And he is not the outspoken defender of originalist theory that Justice Thomas is.  His pragmatism and soft-spoken nature can be unsettling, even suspicious, to those conservatives who view constitutional adjudication as war.  Finding a softer place for the Court to fall sometimes upsets that battlefield-like sensibility.  And again, I understand the criticism stemming from his opinion on the taxing power in NFIB and his interpretation of ACA in King.  But I would urge Republicans to look at the Chief’s whole record, not just a couple of cases out of hundreds.  Given a proper understanding of the Chief’s record, making the Chief out to be some political hack or closeted Liberal is both wrong and irresponsible.

So, Republicans, get off of his back already.



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