A reader writes:
While I share your views on the Roberts' ruling on Obamacare and see it as a sign of hope for the judicial right, you sound a little too optimistic in your post on Roberts. You mention that Citizens United may have led Roberts to the full political consequences of a rightward activist high court, but Roberts failed to allow the court to give Citizens a second hearing in the state of Montana's recent challenge to it. If Roberts was really as you thought, I feel his conservative nature would force him to favor another hearing, in light of the past few years of campaign donations.
Another writes:
The clues about Roberts were visible to conservatives in 2005. They just didn't heed them. I am a political scientist and presented a paper at the annual meeting of the American Political Science Association on Roberts' ideology in 2005.
My research found that he was very conservative in his decision-making in criminal justice disputes, and also in civil liberties and rights cases (though the limited numbers of cases in this area restricted my ability to draw any firm conclusions about his record). In economic disputes, however, my research found that Judge Roberts was more liberal than the appellate court average, frequently willing to defer to government regulator. Here [pdf] a link to the paper. It was the subject of a Washington Post news article by Charles Lane.
I never really understood why observers at the time – especially conservatives - didn't look more closely at his judicial record. (Heck, even the Post ran a story on it!) Instead, there was enormous focus at the time on his impressive resume, sterling credentials, and photogenic family. The bottom line: a close reading of John Roberts' record before he was appointed to the Supreme Court revealed that he is a conservative but it clearly suggested that he would not march in lockstep with folks like Scalia.
Another provides a history lesson:
Last time a Supreme Court inserted itself politically into major policy debates was, of course, the 1930s and the New Deal. The Court's role in the Civil Rights Era was in recognizing "separate but unequal" as a problem and that federally-given civil rights may require a more flexible approach to federalism than had previously existed. But in the 1930s, the Supreme Court was a major player in policy because it kept striking down laws at both the federal and state level that were attempting to combat the dismal economic conditions.
On the federal level, Tenth Amendment concerns, federalism and a literal reading of the Commerce Clause were used consistently to say that the federal government can't interfere. However, less discussed was that the Supreme Court was striking down identical legislation at the state level on "Freedom of Contract" and procedural due process grounds: the idea that the Constitution did not permit any government unit to dictate terms of "contracts" in any fashion. This was the over-reach that was driving politicians and the 30% unemployed crazy, the idea that five Justices held the view that times were tough but nobody was allowed to do anything.
So, after some not-so-veiled hints, "The Switch in Time that Saved Nine" occurred, where Justice Owen Roberts changed his vote in Parrish to a less literal interpretation of the Commerce Clause. It took all the steam out of court-packing and kept the Court's number at nine Justices (whether that was a good thing is unknowable, but it kept some restraint on a President simply appointing Justices and forcing them through the Senate until that President got the outcomes he wanted).
Justice Owen Roberts' decision was totally against all his previous decisions on the Commerce Clause; it was made for political reasons, and it reflected an allegiance to the Supreme Court over ideology. The decision is regarded as a turning point in the Court's jurisprudence, but only Constitution-in-Exile types such as Bork regard Roberts' switch as a "betrayal" or in any negative light. Most Constitutional Law classes, at undergrad and law school level, regard it as the Court acknowledging political reality at worst. At best, the switch could be regarded as following Justice Holmes' famous dissent in Lochner v. New York – "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statistics" – that attacked the Supreme Court's use of one economic model as the "proper" economic analysis for decisions.
Therefore, there is precedent for this particular Supreme Court Justice (John) Roberts' change in predicted vote; there is precedent for voting against previous jurisprudence that holds up long-term as a good decision; and there is precedent for a good Supreme Court Justice to keep an eye on political reality (for the opposite, Dred Scott is used as the paradigm for a Court being politically naive). Conservatives will forgive Roberts eventually (if you count insurance companies as winners here; Roberts is still batting 100% on that front), or they won't and Roberts will still be Chief Justice.
The Dish 