The Supreme Court: Not Such an Impregnable Fortress Anymore?

John Roberts escapes controversy but not the leaks.

ByABC News
July 16, 2012, 4:15 PM

Washington, DC -- Last Friday Chief Justice John Roberts fulfilled his commitment to teach a law school course in Malta -- the "impregnable island fortress" he joked about visiting in the days following the release of the health care decision. Today, a new Gallup poll was released showing that the Republicans' favorable rating of Roberts is down 40 percentage points from 2005. Gallup says that it is a "reasonable assumption" that a shift in attitudes occurred as a result of the health care decision.

Malta's isolation must have offered an unexpected and welcome respite from the controversy surrounding his vote to uphold the individual mandate under Congress' taxing power.

While some conservatives praised Roberts' decision, others called him a "coward" and four of his colleagues attacked his opinion in an unusual and blistering dissent.

After the landmark case, easily the most controversial in Roberts' seven year career as chief justice-- the question becomes whether Roberts will be able to mend the rift caused by the opinion or whether the case might serve as a turning point between the young chief justice and his conservative colleagues.

Scotusblog's Lyle Denniston, who has covered the court for some 50 years, cites unprecedented leaks sourced from inside the court that surfaced after the opinion was released and wonders whether Roberts might be facing a "crisis of leadership."

But Bradford A. Berenson, a lawyer at Sidley Austin, has seen first hand how the justices have been able to recover from hard feelings caused by a decision and move on. Berenson served as a clerk to Justice Kennedy in 1992 in the fall just after Planned Parenthood v. Casey came down. Kennedy shifted his vote in the case and dismayed the conservative justices by voting to uphold the core of Roe v. Wade.

"When the Justices came back after the summer following the Casey decision, there were still some signs of strain in certain of the relationships," Berenson says. "But as the term progressed, things seemed to return to normal fairly quickly."

While Roberts will undoubtedly be stung by the leaks that came so soon after the release of the opinion, it is doubtful that there will be a long standing rift that would paralyze future deliberations. The justices do, after all, have work to do. They show a remarkable ability to get along, even if they have deep philosophical differences.

Bradley W. Joondeph, of Santa Clara Law, believes that next term could bring new cases where Roberts will be aligned again with Justices Antonin Scalia, Samuel Alito and Clarence Thomas on some critical social issues.

"The high profile cases that the court is likely to decide next term all involve hot button social issues: affirmative action, racial discrimination in voting, and gay marriage. Those issues lie at the core of the modern conservative legal movement, the movement that launched Thomas, Roberts and Alito onto the court. I would guess that all three are apt to see those cases similarly, and to vote for conservative outcomes, " says Joondeph.

Joondeph is not surprised that Roberts voted to uphold federal power in the health care case. "Federalism has never seemed a burning issue for Roberts. He has worked in Washington, DC and often for the federal government, for essentially his entire professional life. And his voting record as a justice on federalism issues has been decidedly mixed," Joondeph says.