It is common to refer to the Supreme Court by the name of its chief justice. But merely having the title isn’t enough to make a chief the court’s dominant legal presence.
For instance, folks don’t talk much about the Waite court that existed from 1874 to 1888 (during which Morrison Remick Waite presided), or the White court that ran from 1910 to 1921 (during which Edward Douglass White Jr. served at the helm). On the other hand, the great chiefs, such as John Marshall and Earl Warren, attained greatness for their courts and themselves by authoring momentous decisions that shaped the basic contours of the American system.
In writing Thursday’s landmark ruling upholding the key aspects of President Obama’s health-care law, while at the same time cutting back on established understandings of federal power, Chief Justice John G. Roberts Jr. claimed the current Supreme Court as his own, and began to build for himself a legacy of greatness.
Over the last year — indeed, the last six years — Justice Anthony M. Kennedy has most consistently been in the majority in hotly contested 5-4 rulings. Roberts, on the other hand, has been in dissent in many significant criminal procedure decisions. But in the healthcare case that defined this term — and perhaps this decade — for the court, Roberts ruled and Kennedy lost (as did all the other justices, in a sense, because Roberts was the only justice who agreed with every single important thing the court decided in the case). It is not an exaggeration to say that the Affordable Care Act case was — in terms of the number of people affected, the amount of money involved and the symbolic, political and institutional stakes on the line — bigger than all the other 70-some cases the court decided this year put together.
What does Roberts’ action in the healthcare dispute say about the kind of chief he is? It tells us he shares or at least appreciates the instincts of some of his most revered predecessors. Take towering Chief Justice Marshall, who led the court from 1801 to 1835. The Marshall court’s two most enduring opinions are McCulloch vs. Maryland and Marbury vs. Madison. In McCulloch (a case upholding federal authority to charter the Bank of the United States), the court made clear that Congress’ powers are finite but broad, and that Congress must be given the benefit of the doubt so long as its objectives are legitimate and sincere and the means it uses are likely to advance those objectives. That is essentially the methodology Roberts used to uphold the individual mandate provision as a permissible tax.
In Marbury (the case known for cementing the court’s competence to declare federal statutes invalid when they run afoul of the Constitution), Marshall succeeded in moving constitutional law toward his own ideological sympathies while reaching an immediate result that avoided a direct political confrontation with a president (Thomas Jefferson) who opposed Marshall’s basic vision.
Roberts’ healthcare ruling did exactly the same things. Even as it upheld a law in which the president had invested significant political capital, Roberts’ ruling placed new limits on Congress’ commerce and spending clause powers, thereby promoting the conservative constitutional values that Roberts has always espoused. Moreover, the chief justice accomplished this in the context of an overall outcome that makes it hard for Obama and others who differ from Roberts’ basic constitutional outlook to complain, and in a manner that enhances the credibility of the court as an independent, nonpartisan arbiter.
Roberts’ actions also invite comparisons to those of Chief Justice Warren (known to some admirers as “Super Chief”), whose signature achievement was obtaining unanimity for his path-breaking opinion invalidating public school segregation designed to subjugate blacks. Roberts was not able to get all of the current court to agree to his healthcare resolution — he is only human — but it is noteworthy that he got seven votes (including Justices Stephen G. Breyer and Elena Kagan, both appointed by Democrats) to join in invalidating the Medicaid expansion conditions of the healthcare law, the only part of the act that was trimmed back. If the court is going to invalidate even a part of the most thoroughly vetted congressional legislation of the modern era at a time of hyper-partisanship, how refreshingly healthy and remarkable to have a cross-ideological coalition of justices doing it.
Not all chief justices have been successful at pivotal moments in avoiding altercation with oppositional presidents. Chief Justice Roger Taney (who authored the infamous Dred Scott ruling) picked, rather than passed up, fights with Abraham Lincoln. And Chief Justice Charles Evans Hughes could not stop his court from demolishing huge chunks of President Franklin D. Roosevelt’s early agenda.
Like these two men, Roberts was already chief justice when a watershed election swept a reform-minded president into the White House. But unlike these two earlier chiefs, Roberts — following the lead of Marshall — found a way to stand his intellectual ground without provoking a battle royal with the chief executive.
Now, the question becomes, what does the health-care ruling portend for the Roberts court?
It would be unwise to think that Roberts will side with the so-called liberal justices in controversial cases often; he remains a solidly conservative jurist whose vote in the healthcare matter may free him up for the rest of his tenure to follow his conservative instincts, largely immune from the charge of partisan cronyism.
And the decision ought to remind us that, at least when the questions presented involve the authority of the federal government to meaningfully address the overriding problems of the day, we should stop focusing exclusively on Justice Kennedy as the decisive voice on the court, and also look to its formal leader, whose name will bear history’s judgment for decisions reached by his court.
• Amar is a professor and the associate dean of UC Davis School of Law.