Conservatives steamed at Chief Justice Roberts' betrayal
Conservatives were left baffled after Chief Justice John Roberts saved Obamacare three years ago. On Thursday, as the George W. Bush appointee again helped President Barack Obama's signature legislative achievement avoid a potentially devastating blow, they felt betrayed.
Adding to the sting: The chief justice wasn't just along for the ride. When the court's ruling allowing the law's insurance subsidies to be offered nationwide emerged, he wrote the majority opinion and delivered it from the bench.
"It's a sad day for the Constitution when the clear terms of a statute can be 'interpreted' away in the service of an aggressively lawless president. The two biggest losers today are the English language and the legacy of Chief Justice Roberts," said Carrie Severino of the Judicial Crisis Network.
"If the Chief Justice is willing to join the Court's liberals in this linguistic farce, it's time we admitted that our national 'umpire' is now playing for one of the teams," she added, alluding to Roberts' famous description of a judge's role as calling balls and strikes.
Roberts' decision to side with the Obama administration for a second time on the high-profile health care law threw a huge splash of fuel onto a long-simmering debate about whether Republicans misjudged the chief justice when he was nominated a decade ago or whether he has grown more moderate in his years on the court -- a phenomenon many conservatives complained about with earlier Republican appointees such as Justices David Souter, Sandra Day O'Connor and John Paul Stevens.
The new ruling from Roberts comes just weeks after he joined with the court's liberals in a 5-4 decision the chief wrote backing restrictions on fundraising for judges' election campaigns. Earlier in the term, Roberts joined frequent swing justice Anthony Kennedy and the court's democratic appointees in a 6-3, pregnancy discrimination decision that took a decidedly moderate tack, disappointing both businesses and women's advocates.
But those decisions were minor when compared to the major victory Roberts helped deliver to the Obama White House Thursday.
"This affirms that Roberts is something very different than what conservatives and probably even liberals thought they were getting," said Curt Levey of the Committee for Justice, a group that presses for conservative judges. "I would expect people to be bitterly disappointed with Roberts ... You can try to explain that away one time -- people did try to explain it by saying he was intimidated ... but it's hard to see that happening twice."
"I think he just doesn't have the courage to follow the law when it leads to an uncomfortable place," said Levey, who added that he is now convinced Roberts is drifting leftward. "Is Roberts as bad as Souter? Not yet, but who knows?"
Justice Antonin Scalia -- often considered the dean of the court's conservative wing -- appeared to join the pile-on against Roberts, penning a dissent containing a withering torrent of barbs and caustic assaults on the majority opinion the chief justice wrote.
While Scalia observed decorum and didn't attack Roberts directly, Scalia took a swipe at the chief by invoking Roberts' 2012 opinion holding Obamacare's individual mandate constitutional as a tax.
"We should start calling this law SCOTUScare," Scalia wrote. "This Court's two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed ("penalty" means tax, "further [Medicaid] payments to the State" means only incremental Medicaid payments to the State, "established by the State" means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence."
While Scalia's opinion is free of profanity, it does declare some of Roberts' reasoning "pure applesauce."
Despite the slings and arrows from the right, Roberts again enjoyed the effusive praise of liberals who have bitterly denounced his decisions on issues like voting rights and campaign finance.
"To his everlasting credit, and the credit of the critical institution he leads, the Chief Justice played it straight in today's ruling," former Obama White House aide David Axelrod wrote on Twitter.
Levey said the conservative disappointment with Roberts is likely to raise the profile of judicial selection issues in the Republican presidential primary already underway. "I think this puts more pressure not only on the next Republican president on candidates for president in the upcoming debates.....Republican presidents need to be careful about appointing conservatives," the conservative advocate said.
Despite the stir around Roberts' stance in the new Obamacare ruling, the 6-3 split meant the chief's vote was not as critical as it was in 2012 when he provided the deciding vote to uphold the Affordable Care Act's individual mandate. Justice Kennedy, who ruled against the mandate three years ago, was the sole Republican appointee to join Roberts on Thursday.
Legal analysts and political operatives will have another big chance to assess Roberts' jurisprudence in the coming days, when the court releases another high profile decision on gay marriage. Kennedy is widely expected to join the court's liberal justices in a decision finding that the U.S. Constitution guarantees same-sex couples the right to marry nationwide.
Few Supreme Court watchers expect Roberts to sign on to that sort of ruling, but some saw signals at arguments in the same-sex marriage case that Roberts might be open to a narrower decision holding that states have a duty to recognize marriages authorized by other states.
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