By Sam Baker and Bob Cusack - 06/24/12 10:51 AM EDT
John Roberts’ legacy as chief justice will likely be defined over the next few days as the Supreme Court will decide whether to uphold, or destroy President Obama’s signature healthcare law.
One way or the other, history will be made this week for Obama’s presidency, and the Roberts court.
Should the court uphold healthcare reform, conservatives will cry foul. Even if Justice Anthony Kennedy, the so-called swing vote, sides with the left-wing Justices, Roberts might be criticized from GOP activists for not securing a majority on such a big ruling.
If the Justices strike down the law, liberals will surely accuse Roberts and his colleagues of a partisan bias.
Obama and Roberts have had a fascinating relationship, though calling it a relationship might be a stretch.
While serving in the Senate in 2005, Obama, impressed with Roberts’s intellect, reportedly considered voting to confirm him.
Pete Rouse, then Obama’s chief of staff, urged him to reconsider, noting that a yes vote could cripple a possible presidential bid down the road. Obama ultimately voted no on Roberts, who was backed by liberals such as ex-Sen. Russ Feingold (Wis.) and Sen. Patty Murray (Wash.).
More than three years later, Roberts swore Obama into office — on two separate occasions. After flubbing a few words in the public ceremony, Roberts got it right in a do-over swearing-in ceremony a couple days later at the White House.
Roberts’s mistake was laughed off by both men as they exchanged pleasantries.
But there were few smiles in 2010 when Obama chastised the Supreme Court for its Citizens United ruling during his State of the Union address. Most of the Justices, including Roberts, were in attendance.
While Justice Samuel Alito shook his head and mouthed the words “not true” as Obama ripped the campaign finance ruling, Roberts did not change his facial expression. However, Roberts subsequently suggested he is uncomfortable attending State of the Unions. He said the annual address has “denigrated into a political pep rally. I’m not sure why we are there.”
The challenge to President Obama’s healthcare law is the biggest case the court has heard since Roberts became chief justice seven years ago. It has the potential to reshape the scope of federal power, and it carries enormous political consequences as Obama campaigns for a second term.
Roberts said during his Senate confirmation hearings that he sees himself as an “umpire” — a jurist who would simply call “balls and strikes” and try to build consensus on the bench.
Democrats are already arguing that Roberts would shatter that image by voting to strike down all or part of Obama’s healthcare law, especially following the Citizens United decision.
“I think it will go a long way to discrediting the court as an institution somehow above the fray,” Rep. Gerry Connolly (D-Va.) said of the healthcare case. “They become nothing more than another bunch of partisans in the third branch of government — which is what they are, but the scales will fall from their eyes.”
Neal Katyal, who served as acting solicitor general for Obama and defended the healthcare law in lower courts, dismissed the suggestion that Roberts is eager to strike down the healthcare law because of a political animus toward Obama.
He said it is “preposterous” to believe Roberts or Kennedy would cast their votes on a major constitutional issue just to stick it to Obama.
“I think it’s going to be the hardest vote they cast in their lifetimes, and I think they see it like that,” Katyal said last week at an event organized by the U.S. Chamber of Commerce.
Many observers were struck by how Roberts attempted to keep an even hand during oral arguments in March, sparking some worry on the right that the chief justice’s view on “Obamacare” is not a sure thing.
House Minority Leader Nancy Pelosi (D-Calif.) has predicted the court will uphold the law 6-3. While she has refrained from offering a more detailed breakdown, political insiders interpret her speculation to mean that Roberts and Kennedy will side with the administration.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who voted to confirm Roberts, has said the tossing the law in a 5-4 decision would trigger memories of Bush v. Gore and shake the public’s opinion of the high court.
In a recent poll conducted by The New York Times and CBS News, only 44 percent of people approved of the job the Supreme Court is doing. It also found that three-quarters of respondents believe the justices’ rulings are sometimes influenced by their personal or political views.
The court does not have to strike down or uphold the entire healthcare law. It could strike only the individual mandate, or the mandate and a few closely related provisions, while leaving the rest of the law intact.
Such a ruling would be more complicated, which might help defuse partisan tensions, and the court has taken narrow approaches to controversial issues in the past.
“Kennedy often seems attracted to those middle-of-the-road positions,” Harvard University law professor Michael Klarman said. “I guess you could imagine that sort of thing appealing to Justice Kennedy.”
But he said he doubts that severing the mandate from other parts of the law would affect whether Roberts is remembered as the umpire he described.
“I don’t think that a narrow decision makes it look like ‘balls and strikes,’” he said. It makes it look like a political calculation. It looks just as political as if they strike the whole thing.”
Klarman said the public might come to see the court as more political after the healthcare decision. But that’s simply a more accurate view, not a sign that the court has actually gotten more political, he said.
“I do think at some point this mystique of the Supreme Court as somehow being above politics ... is going to seem so ridiculous that people will stop talking that way,” Klarman said.
Paul Clement, who argued the case against the mandate before the Supreme Court, said he believes the healthcare case will bolster public opinion of the court.
Clement, who served as solicitor general under President George W. Bush, noted that political journalists have taken an enormous interest in the healthcare case, supplementing the small pool of reporters who cover the court day-to-day.
He said he has been amused by political journalists’ “complete inability to believe that there will not be leaks,” and suggested that the public would gain a new respect for the court after seeing how differently it functions compared to Congress and the executive branch.
“In that sense, I think this is a good thing for the court,” Clement said at the Chamber of Commerce event. “People will have an appreciation that this really is a different branch of government.”