The Supreme Court: Not Such an Impregnable Fortress Anymore?

John Roberts escapes controversy but not the leaks.

ByAriane de Vogue
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.

Roberts is only 57 years old and he will most likely serve on the court for at least 20-30 years. His perspective as chief is long term.

David G. Leitch, a former clerk of Chief Justice William Rehnquist and now general counsel of Ford Motor Company, takes a historical look at Roberts' role as chief justice.

"Rehnquist spent years articulating his views as an associate justice, but many observers felt that once he became the chief justice he voted differently in some cases than he would have as an associate justice. It's hard to say if that's true, or if it was, why it was true, but certainly one could imagine the leader of an institution such as the court feeling a special obligation to consider institutional interests rather than simply his individual views."


In the health care case Roberts said that the individual mandate could not be upheld under the Commerce Clause of the Constitution, the primary argument put forward by the government to justify the law. He also narrowed the law's expansion of Medicaid.

For these reasons conservative columnist George Will said that even though the law had been upheld, Robert's opinion was a victory for conservatives.

Will said on ABC's THIS WEEK: "It built a fence around the Commerce Clause.Then, on the Medicaid expansion, for the first time in history, a majority of the states banded together to challenge the constitutionality of the legislation and they won. "

But the conservatives on the court were furious when Roberts joined the liberals to uphold the law under the government's second argument: Congress' power to tax.

"The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax," Roberts wrote." Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."

The dissent, by Justices Anthony Kennedy, Antonin Scalia, Samuel Alito and Clarence Thomas was biting. "The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching," Kennedy read from the bench. " It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect."

After the decision was released, conservative Glen Beck advertised t-shirts calling Roberts "coward." Paul Clement, the lawyer hired by the 26 states challenging the law, said after the decision, "If you told people that there were four solid votes to strike down the whole thing, most people would be surprised to find one was Kennedy,"

Looking at the structure of the opinion, court watchers speculated almost immediately that Roberts might have shifted his vote after considerable writing had been done.

Theodore Olson, former solicitor general in the Bush administration, told an audience, "It does not look to me as if this set of opinions started off as a decision upholding" the mandate under Congress' taxing power.


And then, three days after the opinion was released, something almost unprecedented occurred. The Supreme Court-- the branch of government least likely to reveal its secrets --sprung a leak.

CBS's Jan Crawford --the author of a well received book in 2007 called SUPREME CONFLICT --reported that those "with specific knowledge of the deliberations" said Roberts had switched his vote in May. Crawford's reporting reflected the fury of the dissenters who didn't mention Roberts' majority because the conservatives, "no longer wished to engage in debate with him." contradicted some of the CBS report quoting those "within the Court with direct knowledge of the drafting process." said that Roberts had in fact drafted parts of the dissent AND the majority opinion.

John Fund, of the National Review, wrote that his "own sources" told him early on that Roberts did express skepticism about throwing out the entire law.

Suddenly, court watchers were engaging in the parlor game obsession normally reserved for the other branches of government: "who are the leakers?"

Before he left Washington Roberts drew laughter from an audience when he said Malta seemed "like a good idea," according to the Associated Press. Presumably he will get some vacation time before he tackles next term. The full story of what happened behind closed doors as draft opinions circulated between chambers may never emerge. Or the public will have to wait for a sitting justice to retire and release his or her papers.

Until then, precedent has broken with leaks coming so soon after a major decision, and the court itself no longer fells like such an impregnable fortress.