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The Mystery of John Roberts—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on July 11, 2012.

The Mystery of John Roberts
By Linda Greenhouse ’78 MSL

In November 1991, the Supreme Court heard argument in Lee v. Weisman, on the question of whether a prayer recited by a member of the clergy at a public high school graduation violated the constitutional separation of church and state. The vote after argument was 5 to 4 to allow the prayer. Chief Justice William H. Rehnquist gave the opinion-writing assignment to Justice Anthony M. Kennedy.

Some months later, Justice Kennedy sent a note to Justice Harry A. Blackmun, the senior justice on the dissenting side. He had changed his mind, Justice Kennedy said; the argument against allowing the prayer was the better interpretation of the First Amendment’s Establishment Clause. Justice Blackmun, now the senior justice in the majority, had the prerogative of reassigning the opinion. He told Justice Kennedy to keep writing.

When the 5-to-4 decision to prohibit graduation prayers was finally announced on June 24, 1992, it was huge news. From today’s perspective, it may not sound like a big deal. But Lee v. Weisman was one of the hot-button cases of the 1991 term, perhaps second only to Planned Parenthood v. Casey, the abortion case that challenged the continued validity of Roe v. Wade.

President George H. W. Bush was running for re-election, and having put both David H. Souter and Clarence Thomas on the Supreme Court, he was eager to show the religious right that he was the rightful heir of his predecessor, Ronald Reagan. His solicitor general, Kenneth W. Starr, made the unusual move of filing a brief asking the court to take the case, even though as a legal matter the federal government’s interest in the outcome was far-fetched. As an administration official explained to me at the time, the strategy was to provide a vehicle for Justice Souter to declare himself lowering the church-state barrier (a profound misjudgment of this Yankee Republican, who voted with the majority).

Justice Kennedy’s position was particularly galling across the conservative spectrum: the wounds from the 1987 defeat of Robert H. Bork’s nomination were still raw, and Justice Kennedy held the seat the Reagan administration had intended for Robert Bork.

But did disappointed conservatives, inside or outside the Supreme Court, run crying to the press? They did not. The behind-the-scenes drama remained largely unknown until Justice Blackmun’s papers became available at the Library of Congress 12 years later. Terry Eastland, writing in The American Spectator in February 1993, said there were rumors suggesting that Justice Kennedy had switched his position, but in the pre-Internet age, the report received little traction. (There were widespread rumors that in the Planned Parenthood decision, issued five days after Lee v. Weisman, Justice Kennedy had switched his vote to join the 5-to-4 majority in upholding the right to abortion, but my own inside-the-court conversations at the time refuted that suspicion.)

The obvious reason for this trip down memory lane is to draw a then-and-now comparison with the torrent of right-wing leaks in the immediate aftermath of the decision to uphold the Affordable Care Act. I’m not surprised by the claim that the crucial vote by Chief Justice John G. Roberts Jr. to uphold the health-care mandate under the Congressional tax power represented a late switch, having suggested that scenario myself in a column written the day of the decision. But I’m amazed by the leaks (to be clear, I had none) and by the invective that continues to be heaped on the chief justice.

Ramesh Ponnuru, a senior editor of National Review and leading conservative blogger, wrote that Chief Justice Roberts “acted less like a judge than like a politician, and a slippery one.” Randy Barnett, a Georgetown University law professor and intellectual father of the Commerce Clause argument against the statute, predicted on the Volokh Conspiracy blog that “it’s hard to imagine Republican politicians citing John Roberts as the type of justice they favor nominating in the future” (odd, because the Roberts opinion, actually accepting Professor Barnett’s Commerce Clause analysis, has left liberals seriously alarmed about the court’s future direction on congressional power). Clint Bolick, a leading libertarian who advocates aggressive activism — sorry, “engagement” — by the court to shrink government power, wrote in The Wall Street Journal that “the upshot is that Chief Justice Roberts has become a ‘swing’ justice on the Supreme Court” and is no longer a “solid conservative.”

Mr. Bolick also wrote that the chief justice’s supposed vote switch has the effect of “magnifying the harm” of the decision. This is a common theme of the conservative critics, although why that should be the case is not self-evident. One asserted reason for concern is that the switch reveals the chief justice’s vulnerability — now and in the future — to blandishments from the establishment to do the right thing, to care about his reputation and that of the court. I think this notion is close to fatuous. The chief justice is an astute student of history whose recreational reading includes biographies of former chief justices. He didn’t need to be reminded by a handful of liberal pundits and political leaders that there was a lot riding on his role in this case.

I doubt there was a single reason for the chief justice’s evolution (I know, conservatives hate that word in the context of Supreme Court justices’ ideological trajectories), but let me suggest one: the breathtaking radicalism of the other four conservative justices. The opinion pointedly signed individually by Justices Kennedy, Thomas, Antonin Scalia and Samuel A. Alito Jr. would have invalidated the entire Affordable Care Act, finding no one part of it severable from the rest. This astonishing act of judicial activism has received insufficient attention, because it ultimately didn’t happen, but it surely got the chief justice’s attention as a warning that his ostensible allies were about to drive the Supreme Court over the cliff and into the abyss. (Extraneous question: Is the liberal love affair with Anthony Kennedy — which should have ended five years ago with his preposterously patronizing opinion in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act of 2003 and suggesting that women are incapable of acting in their own best interests — finally over?)

Students of the court more interested in seeking to understand rather than denounce the chief justice’s performance have offered valuable insights in recent days. Steven M. Teles, a political scientist at Johns Hopkins University and author of the commendable “The Rise of the Conservative Legal Movement,” suggested in The Washington Monthly that Chief Justice Roberts was not comfortable with “sweeping uses of judicial power to limit government.” Professor Teles said that while the chief justice was “sympathetic” with his fellow conservatives, he “simply lacks the taste for the jugular that they have, either as a result of his role as chief justice or his prudential sense of how far it is reasonable for the court to go in using its power.”

A Harvard law student, Joel Alicea, in a smart post on the conservative Web site The Public Discourse, wrote that the health care decision revealed “a clash between two visions of judicial restraint and two eras of the conservative legal movement.” If Chief Justice Roberts, nearly a generation younger than Justices Scalia and Kennedy, in fact represents the old form of legal conservatism, in which the judicial role is to salvage statutes if possible rather than eviscerate them in the service of a bigger agenda, that’s a fascinating and highly consequential development.

And it may be just such a fear that explains the anger and angst, the willingness of the leakers — as opposed to disappointed conservatives of an earlier era — to burn the court down in order to delegitimize one whom they happily claimed as their own only weeks ago. The fissures on the conservative side of the court may already be opening over how to approach next term’s big cases on affirmative action (scrap it or confine it) and voting rights (declare the landmark Voting Rights Act obsolete, and therefore unconstitutional, or yield to the nearly unanimous vote by which Congress extended the law’s Section Five for another 25 years). The first case is already on the court’s docket, and the other is on its way, neither by happenstance. Both cases were created by conservative interest groups, primed and nurtured and pushed to the Supreme Court on the assumption that the moment for radical activism had finally arrived.

Is John Roberts the new swing justice? I have strong doubts. The man is conservative to his bones. So the real question is what the word “conservative” means in 2012 and the decades ahead. And that’s a mystery much more important to solve than who leaked and why.

Readers of this column know from my regular references to Judge Richard Posner of the federal appeals court in Chicago that he is one of my favorite judges. A pragmatic libertarian and prolific author, Judge Posner has the enviable quality of being willing to say out loud exactly what he thinks. So his comment on what may lie ahead for John Roberts, in a July 5 interview with Nina Totenberg of NPR, was perhaps not surprising, but I still found it amazing. Here is what he said:

“I mean, what would you do if you were Roberts? All of a sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics.’ Right? Maybe you have to reexamine your position.”