Mark Tushnet is a professor of constitutional law at Harvard Law School and the author of “In the Balance: Law and Politics on the Roberts Court.”
The Supreme Court opened its term this past week with cases about campaign finance, abortion protests, public prayer and presidential power on its docket. John G. Roberts Jr. has been chief justice since 2005, and we’ve seen enough from the Roberts court to get a sense of what we do and don’t understand about it, and to separate reality from fiction.
1. The Roberts court just calls balls and strikes.
Roberts famously said at his confirmation hearing that his job on the Supreme Court would be like an umpire calling balls and strikes
, suggesting that the position doesn’t allow a justice to let his political leanings affect his decisions. The metaphor isn’t all wrong; sometimes the justices do call balls and strikes.
A feature from The Post’s Outlook section that dismantles myths, clarifies common misconceptions and makes you think again about what you thought you already knew.
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But as the joke goes, there are three kinds of umpires: One says, “I call ’em like they are.” Another: “I call ’em as I see ’em.” And the third, “They ain’t nothin’ until I call ’em.” The third umpire has it right, at least for the court’s most complicated cases. There’s a reason we call people like Roberts “judges” — we expect them to exercise judgment in interpreting the Constitution. Even the chief justice has said
he may have pushed the image of mechanical judging too far with the umpire metaphor. In the most recent term, Anthony Kennedy joined the court’s liberals to strike down a key provision in the federal Defense of Marriage Act
and joined the court’s conservatives to strike down a key section of the Voting Rights Act
. It’s implausible to believe that every justice just happened to vote in a way consistent with his or her general attitudes. Those results remind us that sometimes the justices’ political views do affect how they interpret the Constitution.
2. The justices are partisans, just like Republicans and Democrats in Congress.
Justices bring general liberal or conservative attitudes to the task of constitutional and statutory interpretation. But notable exceptions such as Bush v. Gore notwithstanding, the justices usually aren’t shills for whoever happens to be leading the Republican and Democratic parties. For one thing, the justices know they’re going to be on the Supreme Court long after President Obama and House Speaker John Boehner have left office. Their visions of liberalism and conservatism have to run deeper than the passions of today’s politics.
At confirmation hearings, nominees and senators talk about judicial philosophies (if they’re Republicans) and judicial ideologies (if they’re Democrats). Those viewpoints are shaped by the justices’ backgrounds and experiences. It’s no surprise that Roberts and Samuel Alito, who worked as high-placed lawyers in Republican administrations, have conservative visions about the role of government and the Supreme Court, nor that Elena Kagan, who worked in the Clinton and Obama administrations, has a liberal one. But Roberts and Alito aren’t out to enact into constitutional law what today’s Republicans think is good policy, nor does Kagan do the same for the Democrats. After all, Roberts voted to uphold the Affordable Care Act’s “individual mandate,” and Kagan voted to strike down that law’s requirement that all states expand their Medicaid programs to cover more poor people.
3. Roberts’s vote in the Affordable Care Act case was an act of cowardice (or of statesmanship).
The chief justice agreed with his conservative colleagues that Congress didn’t have the power to require people to buy health insurance. Reports from inside the court make it clear that those colleagues were surprised, even outraged, then, when Roberts sent around a draft opinion holding that the power to impose taxes allowed Congress to penalize people for not purchasing health insurance. Conservatives outside the court said Roberts had capitulated to warnings from Obama and other liberals that the court’s credibility would suffer if it struck down the Affordable Care Act. Liberals said his vote was an act of statesmanship, taken to preserve the court’s long-term position in our system of government.