by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The latest Bloomberg Businessweek offers a good example of the conventional (left-of-center) wisdom about U.S. Chief Justice John Roberts. Once praised for his questionable vote to preserve the Affordable Care Act, Roberts now draws fire for a vote to end dubious aggregate campaign contribution limits.
It turned out that both sides read too much into Roberts’s performance in the [Obamacare] case. He exercised canny statesmanship to avoid a clash over Obama’s signature legislation—the sort of showdown that could have stirred a backlash against the court. Roberts accomplished this with subtle lawyering. He said Congress lacked authority under the Constitution’s Commerce Clause to impose the law’s insurance mandate but then rescued the law by declaring it passed muster as a form of taxation. Roberts’s quirky definition of the mandate as a tax likely won’t have lasting jurisprudential impact. His narrow reading of the Commerce Clause, on the other hand, could well resurface in other cases as a potent tool to undercut regulatory statutes. What many saw as a conservative defeat thus in the long run might be the opposite.
In 2013, Roberts returned to a more straightforward position as leader of the conservative wing in rulings limiting the reach of voting-rights protections and affirmative action in higher education. Now it was conservatives who praised his rigor and liberals who shook their heads. Greenhouse declared that “the real John Roberts” had revealed himself. She described his majority opinion in the voting-rights case as demonstrating a “sweeping disregard of history, precedent, and constitutional text?…?startling for its naked activism.” A less fraught way of describing the same decision is that the conservative justices compelled Congress to revisit the half-century-old Voting Rights Act and justify continued federal oversight of historically segregationist Southern states.
This month’s campaign-finance ruling marks another step in Roberts’s calibrated campaign to assert conservative priorities via the court. Building on the 2010 ruling in Citizens United, which struck down limits on independent campaign spending by corporations and unions, his opinion finds that the only legitimate basis for constraining campaign cash is to prevent outright greenbacks-in-the-briefcase bribery. Yet Roberts chose not to follow this line of reasoning to its logical conclusion: He declined a call by Justice Thomas in a concurring opinion to throw out the entirety of existing campaign-finance law. That task, the politically astute chief justice implied, can await another day.