Five years ago, when John G. Roberts Jr. became the Supreme Court’s chief justice, he described the job as though he would be a minor functionary, more like an umpire behind the plate than the star of the game. He also said he favored minimal and narrow decisions, rather than broad but divisive rulings that would abruptly change the law.
But in recent weeks, Roberts has shown that when he has the support of moderate Justice Anthony M. Kennedy, he is willing to move boldly on behalf of conservative causes. Long-standing laws and precedents need not stand in the way.
Last week’s ruling striking down the laws that limit corporate political spending sent a warning that government regulations and intervention in the market could face tough sledding in the Roberts court.
Conservatives have chafed and threatened legal action as the Obama administration has moved aggressively to take over troubled automakers, to rein in pay packages on Wall Street and to regulate greenhouse gases.
In Congress, Democratic leaders voiced confidence that the high court would not intervene to strike down any of these regulatory laws. But that confidence was put to a new test last week. If the Democrats find a way to enact a healthcare law that requires all Americans to have health insurance or else pay a tax, it will face a sure constitutional challenge in the Supreme Court. And there is less reason to be sure such a challenge would fail.
But as before, to pursue a conservative shift, Roberts must win Kennedy’s vote. Two weeks ago, the Roberts court with Kennedy in the majority intervened in a gay-marriage trial in San Francisco after conservative lawyers complained of a judge’s plan to permit a limited public viewing of the courtroom testimony. The judges in California saw a benefit to more open debate over this highly contentious issue. In a 5-4 decision, the high court ordered the courtroom closed, ruling that defenders of the ban on same-sex marriage would probably face harassment if the proceedings were broadcast.
By contrast, last week the same 5-4 majority opted for wide-open free speech, striking down the limits on “corporate political speech” even if it meant more corporate-funded attack ads. Justice Kennedy said freeing corporations from the long-standing limits on campaign spending would further “the right of citizens to inquire, to hear, to speak and to use information to reach consensus. [It] is a precondition to enlightened self-government.”
“There is a difference between judicial restraint and judicial abdication,” Roberts said in his opinion in the case.
The court’s ruling jolted Congress, particularly Democrats. They will have to think twice before supporting legislation that could provoke corporations or industries to target them for defeat in November.
President Obama, in his weekly address Saturday, denounced the decision, saying, “I can’t think of anything more devastating to the public interest.” He said his administration would work with Congress to “develop a forceful, bipartisan response to this decision.”
The campaign finance case is not the first time Roberts has moved boldly with Kennedy on board. After Justice Samuel A. Alito Jr. replaced Justice Sandra Day O’Connor, Roberts led a 5-4 ruling that struck down school integration plans in Louisville and Seattle as unconstitutional racial discrimination.
But never has Roberts gone so far to reshape the law as he did in the campaign finance decision, raising questions about what will happen the rest of this year and in the years ahead.
Last week’s ruling may be the first of several to reshape the 1st Amendment in a more conservative direction.
Kennedy has consistently dissented from rulings that prohibited religious symbols from being displayed in government buildings or on public land. Currently pending before the court is a case challenging a cross that has stood for decades in California, in what is now the Mojave National Preserve. The justices could interpret this case narrowly, or with Kennedy in the majority, they could broadly free government officials from legal constraints on the display of religious symbols.
In April, the court will decide whether a Christian student group in San Francisco should have lost its funding at the UC Hastings law school. The rules require student groups to be open to all students, and the school’s Christian Legal Society chapter said it would not accept gays and lesbians.
Also in April, the high court will hear an appeal from conservative activists in Washington state who claim their rights to free speech and privacy would be violated if the public were permitted to see who signed ballot petitions opposing the state’s domestic partner law.
In October, Indiana lawyer James Bopp, who filed the appeal that led to the campaign finance decision, filed an emergency appeal in the Washington state case, contending that there would be “irreparable harm” if the ballot petitions were treated as public records, as they had been in the past.
The high court granted his appeal and then voted to rule on this free speech and privacy claim this term.