[Guest Post] The First Openly "Gay Chief Justice"?

Guest post by Zachary Cook. Check out Zach’s site: There And Back Again.

Liberals from coast to coast have started the meme that John Roberts is looking to tear us down via the “long game”. But his Obamacare ruling may signal something dramatically different on at least one major issue.  

Chief Justice John Roberts is the talk of the town after he was the swing vote in a 5-4 ruling to affirm Obamacare, President Obama’s signature legislation, in a situation where the law being stricken down could have resulted in a November loss for the President. Now it looks like credible reports are stating that Roberts may have flipped his vote halfway through the process out of an interest of the long term legitimacy of the court:

In addition to private jostling within the Supreme Court, it appears that the public spotlight was a factor. The CBS report points to how Roberts pays attention to media coverage. With his court’s reputation on the line, one source suggested that the chief justice became “wobbly” in the eyes of his conservative counterparts.

As the court made its historic Affordable Care Act ruling on Thursday, suspicions arose regarding Roberts being scared off by Justice Antonin Scalia. The Daily Beast highlighted one theory from a reader who clerked on an appellate court.

The idea that while a staunch conservative, Roberts is also interested in seeing the long term legitimacy of the court prevail was popular with the left. A discussion on the legitimacy of the court would have started the moment the law was struck down – especially since the court’s 4 dissenters did not just strike down the individual mandate, as expected, but the entire legislation. Adam Winkler, writing for Huffington Post, examines his motives:

With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president’s signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn’t want to go there.
Roberts’ decision was consistent with his confirmation hearings pledge to respect the co-equal branches of government, push for consensus, and reach narrow rulings designed to build broad coalitions on the Court. He promised to respect precedent. His jurisprudence, he said, would be marked by “modesty and humility” and protection of the precious institutional legitimacy of the Court.

There’s a fairly decent argument to be made that while Roberts personally may have been in favor of invalidating the mandate, he realized the impact of the of that ruling, and if that led to an Obama loss in November, it’s very possible Democrats would have made it long term mission to eventually weaken or end the institution. So it’s obvious that at least some portion of that line of thinking played into his choice – the idea that a court has a long term legacy and he doesn’t want to be looked at by history as the Chief Justice that led the Supreme Court right off the cliff.


While there’s talk of this being a nessessary choice so he can muster “political capitol” needed for future conservative rulings, the one place where liberals may take heart in this ruling could lie in marriage equality legislation that will certainly be brought before the court starting next term. The future of a Prop 8 challenge making it to the Supreme Court is murky, but we’re almost guarenteed to see the lawsuit against the Defense of Marriage Act make an appearance on the docket for next year, according to SCOTUSBlog:

Placing before the Supreme Court another huge cultural controversy, the House of Representatives’ Republican leaders on Friday afternoon asked the Justices to uphold the constitutionality of the 1996 federal law that limits all federal programs and benefits for marriage to legal unions of a man and a woman.   This could set the stage for the Justices to take up the issue of same-sex marriage in their next Term, opening October 1.   The new petition is here; the case does not yet have a docket number assigned.

The argument for the meteoric rise in public acceptance of LGBT marriage and the effect that the President’s endorsement of same sex marriage has been pretty extensively covered, even by this blog. See my article here for more detail, but for the sake of space, we’re going to operate under the assumption that public support levels will continue to rise at at least some rate for the foreseeable future, and it is now a mainstream position, supported by polling numbers.  


So, if we can all generally agree that Roberts places some priority on the way history sees his court, does that lead to the possibility that he sees the logic in siding with the liberal wing on marriage equality? He certainly understands the way that history looks at those that stood in the way of interracial marriage, and we’ve already examined his possible historical motives on his Obamacare ruling. It seems to me that if he is so concerned about the legacy of the “Roberts Court”, this would be a much more obvious place to make a stand than unpopular health care legislation. Does Roberts want his court to be the final one that stood in the way of a major civil rights victory that is all but certain to any but the most blind? Or could he craft the ultimate legacy and join a select group of American justices that can make a true claim to pushing our country forward?

If Roberts is playing the “Long Game”, as some suggest, that may not be the worst thing for Democrats. Roberts does seem to understand that history doesn’t look kindly on politically and religiously fueled extremism, even if it took him a while to realize that his court was starting to become a rubber stamp for those extreme positions. Now it’s time to put that theory to the test – will the Roberts Court be the last court that denies LGBT Americans the right to marry those we love?
To guest post on iREADray.com, contact Ray at rayceojr@gmail.com

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