Cross-posted on Politico
For a group of nine justices that has been called one of the most conservative in recent memory, the Roberts court gave liberals reason to cheer this term—from granting a historic nationwide right to same-sex marriage to upholding a key section of the Affordable Care Act. “Liberals Just Had An Amazing Week At The Supreme Court,” the Huffington Post declared. “It’s fair to say conservatives are re-assessing their view of John Roberts,” one GOP operative told Politico.
So have we really witnessed a shift in the court’s political leanings? To find out, Politico Magazine asked a star cast of legal experts and longtime observers of the court to tell us how the rulings of the past term will shape the legacy of Chief Justice John Roberts’ court. Is this a leftward lurch for the traditionally right-leaning group, or is it more complicated? And what can we expect from Roberts in terms to come?
‘An Emerging Ethos of Judicial Restraint’
The Roberts court this term was marked in many ways by an emerging ethos of judicial restraint. This can appear to have a surprisingly liberal cast, at a time when conservative activists are pelting the court with their demands for intervention on their behalf. So far, though, Chief Justice Roberts is notably inconsistent in the application of his “calling balls and strikes” doctrine. When it comes to the law of democracy, too often Roberts still throws curve balls.
As before, Roberts has proven an able and canny steward of the court’s institutional standing. King v. Burwell, for example, was practically a nuisance suit—an effort to strike down a broad social policy on the basis of a typo. The court never should have taken the case. So when the justices rebuffed the claim, it was plain vanilla good judging, not a liberal breakthrough. The chief justice’s tightly reasoned call for restraint in that case rang true.
Unfortunately, when it comes to democracy law cases, Roberts and some of his colleagues continue to shed the robes of judicial modesty. Not always: In Williams-Yulee v. the Florida Bar, the court upheld Florida rules governing campaign fundraising by judges. The decision limited itself only to judicial races, but its logic extends to all campaign finance law (as Justice Anthony Kennedy, author of Citizens United, noted in his prescient dissent). Today’s ruling in the Arizona redistricting case allowed state voters to enact independent commissions and other election reforms as they have for a century. Yet Roberts dissented. Citizens United, Shelby County, McCutcheon: no judicial restraint here.
An historic breakthrough for human rights such as the marriage case comes along rarely. Most cases do not speak to such deep-rooted constitutional questions of equality and liberty. Let’s hope that when it comes to the law of democracy, the court continues to evolve toward restraint.
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