Skip to main content

Chief Justice Roberts: The decider

By James Simon, Special to CNN
updated 10:54 AM EDT, Fri June 29, 2012
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
updated 12:11 PM EDT, Fri August 29, 2014
Leon Aron says the U.S. and Europe can help get Russia out of Ukraine by helping Ukraine win its just war, sharing defense technologies and intelligence
updated 1:24 PM EDT, Fri August 29, 2014
Timothy Stanley the report on widespread child abuse in a British town reveals an institutional betrayal by police, social services and politicians. Negligent officials must face justice
updated 9:06 PM EDT, Fri August 29, 2014
Peter Bergen and David Sterman say a new video of an American suicide bomber shows how Turkey's militant networks are key to jihadists' movement into Syria and Iraq. Turkey must stem the flow
updated 11:16 AM EDT, Thu August 28, 2014
Whitney Barkley says many for-profit colleges deceive students, charge exorbitant tuitions and make false promises
updated 10:34 AM EDT, Fri August 29, 2014
Mark O'Mara says the time has come to decide whether we really want police empowered to shoot those they believe are 'fleeing felons'
updated 10:32 AM EDT, Thu August 28, 2014
Bill Frelick says a tool of rights workers is 'naming and shaming,' ensuring accountability for human rights crimes in conflicts. But what if wrongdoers know no shame?
updated 10:43 PM EDT, Thu August 28, 2014
Jay Parini says, no, a little girl shouldn't fire an Uzi, but none of should have easy access to guns: The Second Amendment was not written to give us such a 'right,' no matter what the NRA says
updated 1:22 PM EDT, Sat August 30, 2014
Terra Ziporyn Snider says many adolescents suffer chronic sleep deprivation, which can indeed lead to safety problems. Would starting school an hour later be so wrong?
updated 9:30 AM EDT, Fri August 29, 2014
Peggy Drexler says after all the celebrity divorces, it's tempting to ask the question. But there are still considerable benefits to getting hitched
updated 2:49 PM EDT, Fri August 29, 2014
The death of Douglas McAuthur McCain, the first American killed fighting for ISIS, highlights the pull of Syria's war for Western jihadists, writes Peter Bergen.
updated 6:42 PM EDT, Tue August 26, 2014
Former ambassador to Syria Robert Ford says the West should be helping moderates in the Syrian armed opposition end the al-Assad regime and form a government to focus on driving ISIS out
updated 9:21 AM EDT, Wed August 27, 2014
Ruben Navarrette says a great country does not deport thousands of vulnerable, unaccompanied minors who fled in fear for their lives
updated 9:19 AM EDT, Wed August 27, 2014
Robert McIntyre says Congress is the culprit for letting Burger King pay lower taxes after merging with Tim Hortons.
updated 7:35 PM EDT, Tue August 26, 2014
Wesley Clark says the U.S. can offer support to its Islamic friends in the region most threatened by ISIS, but it can't fight their war
updated 7:26 AM EDT, Wed August 27, 2014
Jeff Yang says the tech sector's diversity numbers are embarrassing and the big players need to do more.
updated 4:53 PM EDT, Tue August 26, 2014
America's painful struggle with racism has often brought great satisfaction to the country's rivals, critics, and foes. The killing of Michael Brown and its tumultuous aftermath has been a bonanza.
updated 4:19 PM EDT, Tue August 26, 2014
Ed Bark says in this Emmy year, broadcasters CBS, ABC and PBS can all say they matched or exceeded HBO. These days that's no small feat
updated 3:19 PM EDT, Tue August 26, 2014
Rick Martin says the death of Robin Williams brought back memories of his own battle facing down depression as a young man
updated 11:58 AM EDT, Tue August 26, 2014
David Perry asks: What's the best way for police officers to handle people with psychiatric disabilities?
updated 3:50 PM EDT, Mon August 25, 2014
Julian Zelizer says it's not crazy to think Mitt Romney would be able to end up at the top of the GOP ticket in 2016
updated 4:52 PM EDT, Mon August 25, 2014
Roxanne Jones and her girlfriends would cheer from the sidelines for the boys playing Little League. But they really wanted to play. Now Mo'ne Davis shows the world that girls really can throw.
updated 12:29 PM EDT, Mon August 25, 2014
Peter Bergen and Emily Schneider say a YouTube video apparently posted by ISIS seems to show that the group has a surveillance drone, highlighting a new reality: Terrorist groups have technology once only used by states
updated 5:04 PM EDT, Mon August 25, 2014
Kimberly Norwood is a black mom who lives in an affluent neighborhood not far from Ferguson, but she has the same fears for her children as people in that troubled town do
updated 5:45 PM EDT, Fri August 22, 2014
It apparently has worked for France, say Peter Bergen and Emily Schneider, but carries uncomfortable risks. When it comes to kidnappings, nations face grim options.
updated 1:27 PM EDT, Tue August 26, 2014
John Bare says the Ice Bucket Challenge signals a new kind of activism and peer-to-peer fund-raising.
updated 8:31 AM EDT, Fri August 22, 2014
James Dawes says calling ISIS evil over and over again could very well make it harder to stop them.
updated 9:05 PM EDT, Sat August 23, 2014
As the inquiry into the shooting of Michael Brown continues, critics question the prosecutor's impartiality.
updated 6:47 PM EDT, Fri August 22, 2014
Newt Gingrich says it's troubling that a vicious group like ISIS can recruit so many young men from Britain.
updated 10:50 AM EDT, Thu August 21, 2014
David Weinberger says Twitter and other social networks have been vested with a responsibility, and a trust, they did not ask for.
updated 7:03 AM EDT, Fri August 22, 2014
John Inazu says the slogan "We are Ferguson" is meant to express empathy and solidarity. It's not true: Not all of us live in those circumstances. But we all made them.
updated 8:23 AM EDT, Fri August 22, 2014
Retired Lt. Gen. Mark Hertling says he learned that the territory ISIS wants to control is amazingly complex.
updated 3:51 PM EDT, Wed August 20, 2014
Cerue Garlo says Liberia is desperate for help amid a Ebola outbreak that has touched every aspect of life.
updated 1:42 PM EDT, Thu August 21, 2014
Eric Liu says Republicans who want to restrict voting may win now, but the party will suffer in the long term.
updated 11:38 AM EDT, Thu August 21, 2014
Jay Parini: Jesus, Pope and now researchers agree: Wealth decreases our ability to sympathize with the poor.
updated 8:00 AM EDT, Thu August 21, 2014
Judy Melinek offers a medical examiner's perspective on what happens when police kill people like Michael Brown.
updated 6:03 PM EDT, Tue August 19, 2014
It used to be billy clubs, fire hoses and snarling German shepherds. Now it's armored personnel carriers and flash-bang grenades, writes Kara Dansky.
updated 1:27 PM EDT, Wed August 20, 2014
Maria Haberfeld: People who are unfamiliar with police work can reasonably ask, why was an unarmed man shot so many times, and why was deadly force used at all?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT