- The Washington Times - Sunday, October 4, 2015

Chief Justice John G. Roberts Jr. enters his second decade at the helm of the Supreme Court with his legacy very much in debate, as conservatives who had championed him now question whether their trust was misplaced.

The court begins its session Monday facing a series of cases over the next nine months that will test the chief justice and his eight associates on issues such as affirmative action, the death penalty, Obamacare’s contraceptive mandate and the intersection of voting rights and illegal immigration.

It will all happen with the additional scrutiny of a presidential campaign, where contenders in the Republican primary are already making the chief justice a punching bag, saying he has been a disappointment chiefly for two cases — one in which he upheld the constitutionality of Obamacare and the other in which he rejected a challenge that argued the White House was breaking the terms of the law itself.

Indeed, one conservative group has run an ad that pressures candidates to declare the kinds of nominees they would pick for the court and attacks Chief Justice Roberts as a traitor to their cause, along the lines of former Justice David H. Souter and Justice Anthony M. Kennedy, appointed by Republican Presidents George H.W. Bush and Ronald Reagan, respectively.

“There is, I think, among some quarters on the right — certainly some libertarian quarters — an intense hostility to the chief,” M. Edward Whelan, president of the Ethics & Public Policy Center, said at a Supreme Court preview hosted by the Federalist Society. “I don’t share that, and I don’t know that it’s tactically all that helpful, but I really think what we need to focus on is we have the Kennedy court. There’s only so much any chief could do when you have Kennedy as a fifth vote.”



That so-called Kennedy court was on full display last year with groundbreaking cases in which Justice Kennedy sided with the court’s four Democrat-appointed justices to establish a constitutional right to same-sex marriage and to uphold the use of statistical modeling to prove discrimination.

But 10 years into Chief Justice Roberts’ tenure, analysts say the conservative bent of this court remains clear, with campaign finance, business regulation and major voting-rights rulings.

“I just think there are a lot of areas where this court is pretty conservative. And I haven’t even talked about the procedural stuff, the class-action stuff, consumer protection,” said Carl Tobias, a professor at the University of Richmond School of Law.

The chief justice won confirmation in an overwhelming vote in 2005 after delivering what analysts said was one of the greatest nomination hearing performances of all time. Most memorably, he described the role of a justice as similar to an impartial baseball umpire, calling balls and strikes.

Partisans on both sides have questioned whether he has lived up to that billing, but David H. Gans, director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center, said Chief Justice Roberts has been pretty much what people expected him to be.

“Overall, the record is a very conservative justice, but one that can’t be written off and is capable of some surprises,” Mr. Gans said. “There have been some cases where he’s joined the liberals, but on the whole, looking across, it’s one of a very conservative jurist.”

The Constitutional Accountability Center, a left-leaning legal group, has compiled a list of conservative decisions issued by the Roberts Court, including analysis that he has led the most pro-business bench since World War II. They also pointed to the 2013 Shelby County v. Holder ruling that punched a hole in a key test for discrimination under the Voting Rights Act and the 2010 and 2014 campaign finance cases that allowed interest groups bigger roles in making their views known.

Still, the group said the chief justice has occasionally surprised court watchers, including in the last term when he helped uphold a ban on personal solicitations by judicial candidates for campaign donations.

Despite leading the court, the chief justice is less decisive than two of his colleagues: Justice Kennedy and Justice Samuel A. Alito Jr.

Observers describe the court right now as four conservatives, four liberals and Justice Kennedy, who was indeed the swing vote on the same-sex marriage and racial discrimination cases last year.

“Case in and case out, Kennedy is the one who everybody is pitching their arguments to, and especially in the biggest cases he tends to be the swing vote,” Mr. Gans said.

But a major difference between the current court and the pre-Roberts court is Justice Alito, who joined the court just months after the chief justice. Justice Alito effectively replaced Justice Sandra Day O’Connor, who found herself in the middle much the same as Justice Kennedy.

In replacing her, Justice Alito noticeably tilted the court on issues such as campaign finance and abortion.

Of the cases the court has already announced it will hear, the most watched is likely to be Fisher v. University of Texas at Austin, which is a test of racial preferences in academic admissions.

A 5-4 ruling in 2003, when Justice O’Connor was still on the court, upheld a university’s use of such preferences as long as the school felt it had a compelling interest in advancing diversity. But with Justice O’Connor replaced by Justice Alito, that precedent will be tested.

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