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
September 30, 2014 -- Updated 1653 GMT (0053 HKT)
Jeff Yang calls Ello a wakeup call to Facebook and Twitter, and a sign of hope for fast-rising upstarts Pinterest and Snapchat.
September 30, 2014 -- Updated 2248 GMT (0648 HKT)
Paul Waldman says the Secret Service should examine its procedures to make sure there are no threats to the White House--but without losing the openness so valuable to democracy
September 30, 2014 -- Updated 2049 GMT (0449 HKT)
Jesse Williams says the videotape and 911 call that resulted in police gunning down John Crawford at a Walmart reveals the fatal injustice of racial assumptions
September 30, 2014 -- Updated 2303 GMT (0703 HKT)
Mel Robbins says officials should drop the P.C. pose: The beheading in Oklahoma was not workplace violence. Plenty of evidence shows Alton Nolen was an admirer of ISIS.
September 30, 2014 -- Updated 1911 GMT (0311 HKT)
The Occupy Central movement has already achieved much by bringing greater attention to Hong Kong's struggle for democracy, William Piekos says..
September 30, 2014 -- Updated 1911 GMT (0311 HKT)
The Occupy Central movement has already achieved much by bringing greater attention to Hong Kong's struggle for democracy, writes William Piekos.
September 30, 2014 -- Updated 1413 GMT (2213 HKT)
As Prime Minister Narendra Modi visits America, Madeleine Albright says a world roiled by conflict needs these two great democracies to commit to moving their partnership forward
September 30, 2014 -- Updated 1404 GMT (2204 HKT)
John Sutter: Lake Providence, Louisiana, is the parish seat of the "most unequal place in America." And until somewhat recently, the poor side of town was invisible on Google Street View.
September 29, 2014 -- Updated 1311 GMT (2111 HKT)
Julian Zelizer says in the run up to the 2016 election the party faces divisions on its approach to the U.S.'s place in the world
September 29, 2014 -- Updated 1419 GMT (2219 HKT)
Ruben Navarrette says Common Core supporters can't devise a new set of standards and then fail to effectively sell it.
September 30, 2014 -- Updated 1329 GMT (2129 HKT)
Earlier this month, Kenyans commemorated the heinous attack on the Westgate Mall in Nairobi.
September 30, 2014 -- Updated 1859 GMT (0259 HKT)
David Wheeler says Colorado students are right to protest curriculum changes that downplays civil disobedience.
September 27, 2014 -- Updated 0158 GMT (0958 HKT)
Sally Kohn says when people click on hacked celebrity photos or ISIS videos, they are encouraging the bad guys.
September 26, 2014 -- Updated 1155 GMT (1955 HKT)
Loren Bunche says she walked by a homeless man every day and felt bad about it -- until one day she paused to get to know him
September 30, 2014 -- Updated 1332 GMT (2132 HKT)
ISIS grabs headlines on social media, but hateful speech is no match for moderate voices, says Nadia Oweidat.
September 29, 2014 -- Updated 1233 GMT (2033 HKT)
A new report counts jihadists fighting globally. The verdict? The threat isn't that big, says Peter Bergen.
September 23, 2014 -- Updated 2137 GMT (0537 HKT)
Ebola could become the biggest humanitarian disaster in a generation, writes former British Prime Minister Tony Blair
September 26, 2014 -- Updated 1658 GMT (0058 HKT)
ISIS has shocked the world. But will releasing videos of executions backfire? Four experts give their take.
September 26, 2014 -- Updated 1439 GMT (2239 HKT)
Eric Holder kicked off his stormy tenure as attorney general with a challenge to the public that set tone for six turbulent years as top law-enforcement officer.
September 26, 2014 -- Updated 1309 GMT (2109 HKT)
LZ Granderson says Obama was elected as a war-ending change agent, not a leader who would leave behind for his successor new engagement in Iraq and Syria. Is he as disappointed as the rest of us?
September 24, 2014 -- Updated 0910 GMT (1710 HKT)
Gayle Lemmon says the question now is how to translate all the high-profile feminizing into real gains for women
ADVERTISEMENT