John Roberts, Chief Conservative Strategist

4/13/14
 
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By Paul M. Barrett,

from Bloomberg Businesweek,
4/10/14:

For those who follow the Supreme Court, psychoanalyzing Chief Justice John Roberts is irresistible. His mild manner and measured tone baffle observers who expect bombast from conservative jurists. He refrains from Antonin Scalia’s rhetorical theatrics and Clarence Thomas’s enthusiasm for overturning precedent. He most notably shied away from a potentially explosive political confrontation in June 2012, casting the decisive vote to uphold the Affordable Care Act. That earned Roberts a barrage of invective from conservatives. It also hints at the plans of a chief justice who, at 59, could remain in his powerful post for 20 years or longer.

The chief justice goes out of his way to project a conciliatory image. “I do think the rule of law is threatened by a steady term-by-term focus on 5-4 decisions,” he told Jeffrey Rosen, a law professor at George Washington University, in a July 2006 interview published in the Atlantic. The court was ripe for a refocus “on functioning as an institution,” Roberts added, “because if it doesn’t, it’s going to lose its credibility.” Six years later, Rosen reflected on the interview. “Roberts saw the promotion of consensus in service of the court’s long-term interests as the greatest test of a successful chief justice,” he wrote in the New Republic.

Roberts has not passed this test. With a handful of exceptions, the 5-4 split in ideologically significant cases remains persistent and profound. His stewardship over the last nine terms suggests he is less focused on consensus building than on leading an incremental, tactically savvy shift to the right.

In 2013, Roberts returned to a more straightforward position as leader of the conservative wing in rulings limiting the reach of voting-rights protections and affirmative action in higher education. Now it was conservatives who praised his rigor and liberals who shook their heads.

This month’s campaign-finance ruling marks another step in Roberts’s calibrated campaign to assert conservative priorities via the court.

Step by step, the chief justice makes his mark. In cases yet to be decided this term, his guiding hand will likely be evident in disputes over religious invocations before legislative sessions, state constitutional amendments to ban affirmative action, and medical clinic “buffer zones” to deter anti-abortion demonstrators from pressuring women not to seek the procedure. Obamacare is back on the docket, too, in a narrower religious-liberty challenge to the requirement that employers providing health insurance make contraception coverage available. By early July it’s likely that conservatives once again will be counting their victories, as they will be for some time to come, unless a Democratic president has the opportunity to make appointments that deny Chief Justice Roberts his majority.

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