Neither view is correct. All Obama could have done to hurt the court was criticize it. And it was completely unclear in March and April 2012, when the chief justice was writing his opinion, what result would have been better for the court and for the GOP. Strike the act down, and maybe the court would save the country from a statute with disastrous consequences; uphold it, and maybe history would view the court as allowing a major advance in social welfare to go forward. Strike it down and possibly energize Democrats to turn out in November in outrage; uphold it and maybe energize Republicans to elect a president who would repeal the act. In this case, at least, Roberts simply called one ball (no power under the commerce clause) and one strike (the tax power is enough), as he saw them.
4. The Roberts court is a strong defender of free speech.
The statistics don’t bear this out. Looking at the cases in which the court has considered First Amendment claims, scholars have found that the Roberts court has given less support to the First Amendment than did the Rehnquist and Burger courts, which were not known as avid defenders of free speech.
Many of the Roberts court’s decisions finding that statutes violate the First Amendment involve campaign finance, with Citizens United only the most prominent. Others, such as a ruling invalidating a Vermont law limiting data-mining by pharmaceutical companies, have struck down restrictions on advertising and related forms of speech by corporations. These decisions should be understood in light of the court’s pro-business bent rather as simply defenses of free speech. For example, Holder v. Humanitarian Law Project upheld a federal statute making it a crime to provide “material support” to a foreign terrorist group by giving it advice on how to achieve its goals peacefully. In that decision, the Roberts court adopted a doctrine that could threaten constitutional limits on the government’s ability to punish political speech. Overall, a record worth no more than 11 / 2 cheers for free speech, not three.
5. Justice Clarence Thomas doesn’t contribute much to the court’s jurisprudence.
Thomas almost never says anything in oral arguments, because, he’s said, he thinks his colleagues talk too much. Behind the curtains, though, Thomas isn’t silent. He’s said he likes to write opinions in cases involving complicated and technical statutes, such as this summer’s decision sharply limiting scientists’ ability to get patents on human gene sequences.
On hot-button constitutional issues, he’s staked out positions about gun rights and children’s rights that are more consistently originalist than those of any of his colleagues. And his opinions on affirmative action, which quote Frederick Douglass and emphasize the importance of historically black colleges, have overtones of black nationalism. All in all, Thomas’s voice — in his opinions — is one to take seriously.