In the 21st Century, seemingly all parts of government, both at state and federal levels, are becoming increasingly politicized, partisan, tribal, and socially charged. Even institutions meant to be a-political, mainly the Supreme Court, haven’t been able to escape the divisiveness. Aside from the two controversial confirmation hearings in the past year (not even counting the hearing that never happened in 2016 for Merrick Garland), the past ten years have been filled with highly publicized and partisan issues for the Court. District of Columbia v. Heller, National Federation of Independent Business v. Sebelius, United States v. Windsor, Obergefell v. Hodges, and Fisher v. University of Texas have all been highly publicized cases that have thrusted the Supreme Court into the national spotlight.[1]
However, there has arguably been no decision that was more politically charged than the Supreme Court’s decision in National Federation of Independent Business v. Sebelius regarding the legality of the Affordable Care Act (ACA). In his written opinion, Chief Justice John Roberts concluded that, according to the Constitution, “Congress shall have the power to lay and collect taxes,”[2] and that the individual mandate in the ACA shall be deemed a federal tax. With that said, Chief Justice Roberts’ decision to vote for the Constitutionality of the law, and breaking with the other conservative judges, serves as the most politically courageous Judiciary act of the 21st century. He knew he would be ostracized by one political party while still not being accepted by the other, yet he made his decision independent of the noise outside the Constitutionality of the law.
Chief Justice Roberts, appointed to the Court by George W. Bush and formally Associate Counsel to Ronald Reagan, has held conservative views on landmark issues such as voting rights, campaign finance laws, and gun rights.[3] In his more than 800 decisions while serving on the Court, only 15 of his decisions have been pivotal for ‘liberal’ ideologies. That is, if his vote had been flipped then the court would have ruled 5-4 against the liberal decision.[4]
All of this makes his 2012 decision even more important for several reasons. First, and most importantly, despite his 82.4% voting record toward conservative views in close cases (cases decided by a 5-4 vote), he showed the American public that a national spotlight will not separate the Court into their respective party lines. Second, with Justice Kennedy’s retirement in 2018, the Court lost it’s longtime median vote. A position that yielded considerable power in cases that were split four-four (usually along party lines) before the median Justice’s decision. With Justice Kennedy’s retirement, Chief Justice Roberts has recently been thrust into a position no Justice has ever held before him: being both the pivotal swing vote and Chief Justice.[5] This makes him arguably the most powerful Justice the United States has ever seen during arguably the most politically charged time the United States has ever seen.
With all this said, it begs the question: Why Chief Justice John Roberts Jr? Why not Justice Thomas or Ginsburg or Breyer? While all highly qualified, Chief Justice Roberts was the only Justice on the bench to serve in the Attorney General’s office in the Department of Justice (until Justice Gorsuch was sworn in),[6] a position that requires A-political determination to the law. While laws are highly political in creation, they must remain non-partisan in practice and implementation. Chief Justice Roberts’ commitment to a non-partisan Judicial branch didn’t begin during his time as a Justice or even as a Judge; it began in the inception of his public service career. The American public should take solace not only in his much criticized 2012 Affordable Care Act decision, not only in his defiance of a sitting President regarding the integrity of the Judicial branch,[7] but in a Chief Justice serving his Country a-politically through nearly 40 years of public service.
[1]https://www.cnn.com/2013/06/21/us/top-u-s-supreme-court-decisions-fast-facts/index.html
[2]https://www.law.cornell.edu/supremecourt/text/11-393
[3]https://fivethirtyeight.com/features/john-roberts-has-cast-a-pivotal-liberal-vote-only-5-times/
[4]Ibid.
[5]Ibid.
[6]https://www.supremecourt.gov/about/biographies.aspx
[7]https://www.newyorker.com/news/our-columnists/why-did-chief-justice-john-roberts-decide-to-speak-out-against-trump