Skip to main content

Chief Justice Roberts: The decider

By James Simon, Special to CNN
June 29, 2012 -- Updated 1454 GMT (2254 HKT)
John Simon says Chief Justice John G. Roberts Jr. has helped the Supreme Court's nonpartisan image.
John Simon says Chief Justice John G. Roberts Jr. has helped the Supreme Court's nonpartisan image.
STORY HIGHLIGHTS
  • James Simon: Chief justice breached gap between court's conservative, liberal wings
  • He says Roberts upended reputation as predictable conservative, like a predecessor
  • He says FDR-era Chief Justice Charles Evans Hughes also kept politics out of decisions
  • Simon: Roberts left fate of law with political branches and voters, where it belongs

Editor's note: James F. Simon, dean emeritus at New York Law School, is the author of "FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal," published by Simon and Schuster.

(CNN) -- With his opinion for a narrow majority of the Supreme Court, upholding major provisions of the Affordable Care Act, Chief Justice John G. Roberts Jr. has, for the first time since his confirmation as chief justice in 2005, breached the gap between the conservative and liberal wings of the court on a polarizing political issue.

News: Legal scholars unsurprised by Roberts

In doing so, he has jettisoned his reputation as a predictable conservative vote on controversial issues, such as campaign finance reform and affirmative action, that have been decided by a divided court.

Chief Justice John Roberts, a conservative appointed by President George W. Bush, sided with the Supreme Court's liberal wing on June 28 in upholding the controversial health care reform law. Roberts is seen here in 2005. Chief Justice John Roberts, a conservative appointed by President George W. Bush, sided with the Supreme Court's liberal wing on June 28 in upholding the controversial health care reform law. Roberts is seen here in 2005.
Justice Roberts on the high court
HIDE CAPTION
<<
<
1
2
3
4
5
6
7
8
>
>>
Photos: Justice Roberts on the high court Photos: Justice Roberts on the high court

Roberts, in finding the critical provisions of the Affordable Care Act constitutional, has followed the example of his predecessor, Chief Justice Charles Evan Hughes, who led the court during the tumultuous constitutional battles over President Franklin D. Roosevelt's New Deal legislation. Hughes, like Roberts, sometimes found narrow grounds to uphold New Deal legislation and, as a result, cautiously steered the court away from the public perception that justices voted according to their political values, not constitutional principle.

Chief Justice Hughes, and now Chief Justice Roberts, demonstrated that they placed a high value on projecting the image of the court as a nonpartisan judicial institution that upholds the rule of law and is above partisan politics.

James Simon
James Simon

Hughes skillfully worked to promote the court's public image as nonpartisan, not just in his narrow opinions, but, dramatically, in defending the justices against FDR's attacks and his court-packing plan. Later, in grudging admiration, Roosevelt said that Hughes was "the best politician in the country." That was hardly the way Hughes would have chosen to be remembered, but there was much truth in the president's remark. In June 2012 it may be said that Chief Justice Roberts, like Hughes, has employed political as well as judicial skills in his role as the leader of the Supreme Court.

News: Emotions high after Supreme Court upholds health care law

Roberts surprised almost everybody, including constitutional pundits and members of the Obama administration, when he announced Thursday's decision upholding the Affordable Care Act's most controversial provision, the individual mandate, under Congress' power to tax. Judges on the lower federal courts who passed judgment on the Affordable Care Act, as well as both the challengers and defenders of the law in the Justice Department, focused their arguments on Congress' authority to regulate interstate commerce.

The chief justice, after rejecting the administration's Commerce clause argument, turned to the more general power of Congress to tax. And tellingly, he declared that the court was obligated to uphold a law as constitutional if there were reasonable grounds to do so, even if there were alternative grounds to strike it down. In this respect, the chief justice's opinion was a model of judicial restraint, a term that has not frequently been used to describe the Roberts court.

Republicans vow to repeal 'Obamacare'
CNN clarifies Supreme Court ruling
Supreme Court sides with Obama

The chief justice pointedly wrote that the court did not pass judgment on the wisdom of the law, only its constitutionality. The distinction Roberts made between what may be wise, or even good public policy, and what the Constitution allows, has always been a hallmark of judicial restraint. When the Hughes court in the 1930s, led by four ideological conservatives, struck down major pillars of the New Deal, dissenters accused the justices in the majority of substituting their political judgment for that of popularly elected branches of the federal government.

News: By the numbers: Health care insurance

Though Chief Justice Hughes sometimes voted with the court conservatives, he demonstrated, time and again, that he understood the distinction between the role of the political branches of the federal government and that of the court, which is obligated only to rule on the constitutionality of a statute. Today, Chief Justice Roberts, like Hughes (whom he is known to admire), has again struck a blow for judicial restraint and integrity.

As a result of Thursday's decision, the ultimate fate of the Affordable Care Act does not reside with a majority of the life-tenured members of the court, but with the political branches of federal government and the American voters. In a representative democracy, this is exactly where the responsibility should be.

Follow us on Twitter @CNNOpinion

Join us on Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of James Simon.

ADVERTISEMENT
Part of complete coverage on
October 28, 2014 -- Updated 1237 GMT (2037 HKT)
Errol Louis says forced to choose between narrow political advantage and the public good, the governors showed they are willing to take the easy way out over Ebola.
October 27, 2014 -- Updated 1803 GMT (0203 HKT)
Eric Liu says with our family and friends and neighbors, each one of us must decide what kind of civilization we expect in the United States. It's our responsibility to set tone and standards, with our laws and norms
October 27, 2014 -- Updated 1145 GMT (1945 HKT)
Sally Kohn says the UNC report highlights how some colleges exploit student athletes while offering little in return
October 26, 2014 -- Updated 1904 GMT (0304 HKT)
Terrorists don't represent Islam, but Muslims must step up efforts to counter some of the bigotry within the world of Islam, says Fareed Zakaria
October 24, 2014 -- Updated 1302 GMT (2102 HKT)
Scott Yates says extending Daylight Saving Time could save energy, reduce heart attacks and get you more sleep
October 27, 2014 -- Updated 0032 GMT (0832 HKT)
Reza Aslan says the interplay between beliefs and actions is a lot more complicated than critics of Islam portray
October 27, 2014 -- Updated 1119 GMT (1919 HKT)
Julian Zelizer says control of the Senate will be decided by a few close contests
October 24, 2014 -- Updated 1212 GMT (2012 HKT)
The response of some U.S. institutions that should know better to Ebola has been anything but inspiring, writes Idris Ayodeji Bello.
October 22, 2014 -- Updated 2101 GMT (0501 HKT)
Paul Callan says the grand jury is the right process to use to decide if charges should be brought against the police officer
October 23, 2014 -- Updated 1619 GMT (0019 HKT)
Theresa Brown says the Ebola crisis brought nurses into the national conversation on health care. They need to stay there.
October 21, 2014 -- Updated 2235 GMT (0635 HKT)
Patrick Hornbeck says don't buy the hype: The arguments the Vatican used in its interim report would have virtually guaranteed that same-sex couples remained second class citizens
October 24, 2014 -- Updated 1630 GMT (0030 HKT)
The Swedes will find sitting on the fence to be increasingly uncomfortable with Putin as next door neighbor, writes Gary Schmitt
October 24, 2014 -- Updated 1632 GMT (0032 HKT)
The Ottawa shooting pre-empted Malala's appearances in Canada, but her message to young people needs to be spread, writes Frida Ghitis
October 26, 2014 -- Updated 0148 GMT (0948 HKT)
Paul Begala says Iowa's U.S. Senate candidate, Joni Ernst, told NRA she has right to use gun to defend herself--even from the government. But shooting at officials is not what the Founders had in mind
October 23, 2014 -- Updated 2208 GMT (0608 HKT)
John Sutter: Why are we so surprised the head of a major international corporation learned another language?
October 23, 2014 -- Updated 2154 GMT (0554 HKT)
Jason Johnson says Ferguson isn't a downtrodden community rising up against the white oppressor, but it is looking for justice
October 24, 2014 -- Updated 1621 GMT (0021 HKT)
Sally Kohn says a video of little girls dressed as princesses using the F-word very loudly to condemn sexism is provocative. But is it exploitative?
October 21, 2014 -- Updated 2006 GMT (0406 HKT)
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
October 23, 2014 -- Updated 1414 GMT (2214 HKT)
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
October 21, 2014 -- Updated 1600 GMT (0000 HKT)
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
October 21, 2014 -- Updated 1135 GMT (1935 HKT)
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
October 21, 2014 -- Updated 1312 GMT (2112 HKT)
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
ADVERTISEMENT