Chief Justice Roberts’s Maneuvering Draws in Court’s Liberal Bloc

   < < Go Back
from The Wall Street Journal,

Supreme Court’s Leader Joined Liberal Colleagues to Achieve Some Major Decisions This Term.

In the Supreme Court term that just concluded, Chief Justice John Roberts joined with liberal colleagues to draw some of the court’s major decisions toward the middle.

The maneuvering separated Chief Justice Roberts, who has been at the court for nine terms, from other conservatives who ended up dissenting in favor of greater ideological purity. The chief justice’s approach has sometimes left fellow conservatives, such as Justice Antonin Scalia, fuming over missed opportunities in cases over federal treaty powers, environmental regulation and antiabortion activism outside women’s clinics.

But Chief Justice Roberts may be building a stronger foundation for his jurisprudence by enlisting unexpected allies: liberals who see partial accommodation as preferable to outright defeat from a unified conservative bloc.

Cornell law professor Michael Dorf said demonstrating the ability to work with different factions on the court builds legitimacy for a chief justice.

“I think he cares about that, and he’s going to take those opportunities when they present themselves,” Mr. Dorf said. He added it is “also possible that the liberals are pulling Roberts a little bit towards the center.”

In June, Chief Justice Roberts wrote the majority opinion quashing a Pennsylvania woman’s conviction for violating federal laws implementing the Chemical Weapons Convention. His opinion, joined by all four liberals and Justice Anthony Kennedy, said federal prosecutors overreached. The chemical weapons treaty is intended for weapons of mass destruction, not to cover a romantic squabble in which a wronged wife put a chemical irritant on her rival’s doorknob, the court ruled.

Justice Scalia, joined by conservative Justices Clarence Thomas and Samuel Alito, said the court should have gone much further and overturned a 1920 precedent that more broadly interpreted the federal treaty. “We have here a supposedly ‘narrow’ opinion which, in order to be ‘narrow,’ sets forth interpretive principles never before imagined,” Justice Scalia wrote. The Roberts approach “shirked our duty” to correct a constitutional error.

In another June decision, Chief Justice Roberts struck down a Massachusetts law creating a 35-foot buffer zone outside abortion clinics aimed at restricting how antiabortion activists approach clinic visitors.

The Roberts opinion, which the four liberals joined, rejected claims the zone targeted only antiabortion speech because clinic employees were free to speak with patients approaching the clinic. Instead, the majority simply held that the speech-free zone was bigger than necessary to protect public safety and left standing a precedent upholding more limited zones.

The four other conservatives agreed the Massachusetts zone was unconstitutional, but none joined the chief justice. Justice Scalia again faulted the holding. He said the holding gives “abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents,” adding it perpetuated “an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”

Chief Justice Roberts hasn’t always found middle ground with his liberal colleagues. In April, for instance, he joined Justice Scalia’s opinion invalidating an overall cap on contributions to political candidates and committees, freeing individuals who chafed at the $123,200 biennial limit. The conservative justices said they were protecting free-speech rights; the liberal dissent, by Justice Stephen Breyer, said the majority opened the door to corruption.

On Monday, the final day of the court’s 2013-14 term, the justices also broke into ideological camps in rulings allowing “closely held” companies to cite religious objections to avoid covering contraception in workers’ health plans and handed organized labor a defeat in a decision that said Illinois home-based care workers can’t be forced to pay dues to a union they don’t want to join.

More From The Wall Street Journal (subscription required):