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Think John Roberts has discovered his inner moderate? Don’t bet on it.
It is true, of course, that Chief Justice Roberts’s vote in the health-care case saved the Affordable Care Act – and perhaps Barack Obama’s presidency as well. At the end of the Supreme Court’s last term, Roberts joined with the Court’s four liberals – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – to uphold the constitutionality of the health-care reform law. It was the first time ever that the Chief joined with the liberal quartet in a major case. It’s also probably the last.
Roberts has the advantage of a long-term perspective. At fifty-seven years old, Roberts will likely still be Chief Justice when Sasha and Malia Obama become eligible to succeed their father in the White House. Roberts’s decision in the health-care case reflected his understanding of his place in the history of the Court. In terms of public attention, the health-care case – known as National Federation of Independent Business v. Sebelius – formed a trilogy with Bush v. Gore (2000) and Citizens United v. Federal Election Commission (2010). In those first two cases, five Republican appointees to the Court rendered decisions which provided dramatic benefits to the Republican Party – the first, by installing George W. Bush as president, and the second, by creating a campaign finance system that favors the GOP. In the health-care case, Roberts had to ask himself whether the five Republicans on the Court were going to destroy the central achievement of a Democratic president.
Roberts chose not to go that far. His Republican allies, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, overplayed their hand. They sought to invalidate the law it its entirety, not just the controversial individual mandate. If Roberts had joined them, the Chief would have stirred volcanic partisan outrage and placed the Supreme Court at the center of the 2012 election. Instead, he chose a novel ground – Congress’s constitutional power to levy taxes – to uphold the law. He established new limits on the Commerce Clause, which is usually the principal means for Congress to regulate the economy. He advanced the conservative cause in the long run by disappointing conservatives in the short run.
Chief Justice Roberts also gave himself a political free hand for the foreseeable future. He can be as conservative as he likes and he has insulated himself from criticism for partisanship. That will be important – soon. The Court will likely consider several politically incendiary issues in its 2012-13 term. May universities use race as a consideration in admissions, as Justice Sandra Day O’Connor said they could, in a famous decision from 2003? Does the Voting Rights Act of 1965 discriminate against white voters and legislators in southern states? Does the Defense of Marriage Act discriminate unlawfully against gay people? And – most dramatically of all – does the constitution include a right to same-sex marriage?
Look for Roberts to lead the conservative side on all of these issues. For the next year, and many more, the Chief Justice’s vote in the health-care case will be seen as the great aberration of his judicial career.
Jeffrey Toobin's THE OATH: THE OBAMA WHITE HOUSE and the SUPREME COURT is a fabulous interesting look into the inner workings of the U.S. Read morePublished 4 days ago by Bill Kaye
Toobin's a fine writer who makes the political shenanigans quite vivid.Published 5 days ago by Kent Batty
The areas where the author sticks to facts and anecdotes, rather than his personal political views, are pretty good -- though they become fewer and further between as the book goes... Read morePublished 10 days ago by Paul A. Jackson
This is an excellent follow up to The Nine. Toobin's detailed accounts almost rank with Nina Totenberg's analyses on NPR, failing to reach that level only because his personal... Read morePublished 16 days ago by omnivorousreader
I. The book lacked focus and although there was a lot to be learned it was presented rather willy nilly so I was left with little to hang those gems onPublished 25 days ago by sophie
This book is an update on the earlier, excellent book by this author, Jeffry Toobin, "The Nine:inside the Secret World of the Supreme Court" which I have read also. Read morePublished 2 months ago by Nancy Marks
Excellent book explaining how the supreme court works. It also shows how much current politics has change the current court from its original intent.Published 2 months ago by donna mattes
This was a gift for my granddaughter. She appreciated receiving it and told us she enjoyed reading it. We are happy to have found it on amazon.Published 2 months ago by Dale Hall