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The organization man

"The organization man" Continued...

Issue: "De-coding Morsi," July 28, 2012

Of the 12 justices Republican presidents have nominated since President Richard Nixon, at least seven have "drifted left," or denied conservatives a majority on significant cases. Chief Justice Warren Burger voted with the majority in Roe v. Wade. Justice John Paul Stevens became the court's "liberal lion." Justice Anthony Kennedy voted to uphold Roe, Justice David Souter became reliably liberal, and O'Connor became a swing vote. Since Nixon's administration, Democratic presidents have appointed four justices, all of whom have remained reliably liberal.

"In the way that I know John Roberts, nothing that's happened has changed my opinion of his character," said Rob Schenck, who has a pastoral relationship with the Catholic chief justice. "I know some are worried that he's 'growing in office.' I've not seen anything like that." Schenck, an ordained minister of the Evangelical Church Alliance who heads the D.C.-based outreach to Washington leaders called Faith and Action, quickly asserts that he is not a lawyer, so he is simply defending Roberts' integrity.

Everyone in Washington is parsing Roberts' motives for voting with the liberal justices on such a major case. Jan Crawford of CBS News reported that at a meeting where only the justices were present, Roberts initially voted with the conservative justices that the individual mandate was unconstitutional. But as the term neared its conclusion, he switched his position. Some think he caved to political pressure from Democrats. Others think Roberts really does have a minimalist view of the court, and he decided to rein in the court's influence over American life and let Congress do its job. (But Roberts has overturned federal statutes in the past, most famously in the Citizens United case that threw out certain campaign finance laws and changed campaigns completely.)

"If Roberts' supporters are right"-that Roberts ruled the way he did to preserve the court's reputation-"this decision was made politically. It was not a legal decision," said Randy Barnett, a conservative constitutional expert at Georgetown Law School. "He is the only jurist with any connection to this case who held this position," Barnett continued, referring to Roberts upholding the individual mandate based on Congress' taxing power. "How compelling is that? Everyone's been looking at this case for two years."

Still others think Roberts pulled off a triple Lutz jump, solidifying the conservative court's reputation as moderate and minimalist while gutting the legal framework behind the healthcare law. Former circuit court judge Michael McConnell, who was along with Roberts on Bush's short list for Supreme Court nominees, told me Roberts' opinion was "quite deft" even though he thinks the healthcare law is a "disaster."

"I think he has a genuine commitment to judicial restraint, and we saw that," McConnell said. "I think he also has a long-term desire to make the Supreme Court less of a controversial and politically charged institution." In pursuing that goal in this case, McConnell said, Roberts established tight limits on federal power: "If you think about the case raising long-term constitutional questions, the challengers [of the healthcare law] prevailed on all the important points."

Those in McConnell's camp point primarily to the part of Roberts' opinion that declares the mandate unconstitutional under the Commerce Clause, or the federal government's power to regulate-which would amount to a significant curb on a federal power that has swelled over the last century.

But some legal experts wonder whether that part of the decision will last. "Although a majority of the court agreed on a limitation of the Commerce Clause, there's at least disagreement about whether a future court would view this as binding precedent," said Jordan Lorence, a constitutional lawyer with the Alliance Defense Fund. The four liberal justices dissented from that part of the opinion. The four conservative justices agreed in substance with Roberts on that part of the opinion, but they noticeably did not join his opinion.

Usually when dissenting justices agree with the majority on a part of the opinion, their dissent will say they concur with the majority on that portion. But the four conservative justices refused to concur, which is so unusual that court observers thought the dissent was an expression of the conservative justices' deep anger with Roberts. Usually a dissent argues with the majority opinion point by point, but in the healthcare dissent the four justices barely acknowledge that Roberts' majority opinion exists.

"The court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching," read Kennedy wearily on June 28 from the dissent's blistering conclusion, one of the only parts that acknowledges the majority opinion. CBS News reported that Kennedy intensely lobbied Roberts to come back to the fold after he switched his vote, to no avail. In the past, Kennedy, a Republican appointee, has received the label of "traitor" himself. He and O'Connor voted with the liberal justices in 1992 in Planned Parenthood v. Casey, a case that reaffirmed Roe v. Wade. But his alignment in that case jibes with what he sees as protecting individuals from government. That "betrayal" perhaps made more sense than Roberts' decision to uphold a mandate he thought was unconstitutional on its face.

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