Is John Roberts a Conservative?

That depends on what is meant by the label.  He may be a conservative in the political sense as well as a conservative as a judge.  Those are not, in context, necessarily the same thing.

The Supreme Court Chief Justice has receive strong criticism on the right for, again, voting to uphold Obamacare.  And he has been attacked for hypocrisy in citing the lack of constitutional authority to overturn gay marriage bans while ignoring sound legal principals in refusing to strike down the health care law.

Certainly, in most cases before the high court, whether involving criminal law, gun control or federal regulatory authority, Roberts’ votes have been on the conservative side, politically.  Yet to be a conservative jurist also means a commitment to procedure and legal authority. “Judicial restraint” is the appropriate phrase.

 

Liberal political judges are properly blamed for choosing the desired result in a case before crafting “legal justification” for the decision.  That is not judicial analysis – it’s legislating from the bench.  So conservatives should not criticize a decision simply because they don’t like the result.  We are constitutionalists – the rule of law and procedures matter.  Those judicial principals are conservative, but their application does not necessarily equate to a pleasing political outcome.

This elaboration is not meant to absolve Roberts. His initial decision upholding Obamacare in 2013 was a tortured attempt to justify a ruling vigorously condemned by four other members of the Court.  It surely seemed designed to support an act of Congress approved under questionable circumstances.  But deference to the legislative branch is part of judicial restraint.  Defenders of the Chief Justice can also cite his apparent reluctance to thwart the key objective of the Executive Branch.  [Was that an understandable effort to keep the Court above politics?  Perhaps.  If so, it failed since the convoluted reasoning of Roberts was supported by the four liberal members with nary a qualm about how the decision was reached.]

This past month, Justice Roberts again sided with Obamacare, holding that a legislated directive should be ignored:  the law wasn’t meant to be taken literally.  Instead his opinion relied on legislative history (lawmaker comments) to devine Congress’ intention.

From a judicial perspective, that’s a questionable approach since, usually, an ambiguity in statutory language must be a precondition to reliance upon legislative history.  But, it is true that a contrary position has support among some respected legal scholars. 

What does not is a court’s preference for a policy as opposed to a supportable legal principle.  That is what the Court’s opinion – strongly opposed by Chief Justice Roberts – was in the gay marriage case.  It was judicial fiat – not constitutional interpretation.  The U.S. Constitution has nothing to do with the definition of marriage.  The 10^th Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it, to the States, are reserved to the States respectively, or to the people.”  The definition of marriage is a state, not a federal, concern.

So here proper constitutional analysis has John Roberts on the right side of a constitutional issue.

However, his position on Obamacare, founded on suspect legal justification, aligns him with liberals.  Why would a conservative jurist do that?