“Where is the court’s usual restraint?” asked Justice Ruth Bader Ginsburg.
But that is where Roberts played a key role, one that he seemed to have set up earlier in his tenure.
Racial classifications, increasingly unpopular with the public, are an enemy that Roberts and Kennedy share. Kennedy, who joined the court in 1988, has long held that view, and Roberts fought the practice as a young lawyer in the Reagan White House. In his first term on the court, in a case about minority voting districts, he denounced “this sordid business, divvying us up by race.”
He has similarly been critical of the way the Voting Rights Act singled out some states for special oversight. “Is it the government’s submission that the citizens in the South are more racist than citizens in the North?” he asked Solicitor General Donald B. Verrilli Jr. during oral arguments in the challenge brought by Shelby County, Ala. But he has also been willing to bide his time.
In a case from 2009, he wrote that the court had serious questions about the formula used by Congress to decide which states should be subject to special oversight. When nothing was done, he used the Shelby County case to strike down the formula, effectively ending the oversight and saying Congress had left the court “no choice.”
The on-the-one-hand, on-the-other-hand decisions on minority rights and same-sex marriage might strike the public as balancing. Polls show the public has a generally favorable opinion of the court. Although a majority of the justices were appointed by Republican presidents, polls show Democrats actually have a higher opinion of it.
And some of the court’s alignments on less-noticed cases defy classifications. Several times this term Scalia teamed with the liberals on criminal procedure issues, for instance.
Steven R. Shapiro, legal director of the American Civil Liberties Union, has been frank in the past about wanting to keep some issues that his organization cares about away from Supreme Court review.
But this year, his group prevailed in four of the six cases in which it participated. “It is a complex institution dealing with complex issues,” he said.
Eric Posner, a law professor at the University of Chicago, said it will not be good for the court if the term is remembered for the Voting Rights Act and DOMA decisions, both of which he found poorly reasoned. When the court appears to be striking down legislation with which it simply disagrees, he said, “that can create a backlash.”