Jeffrey Toobin: During DOMA, Prop 8 arguments, chief justice irritated by administration
Administration's roundabout strategy on California's Prop 8 draws Roberts' ire, Toobin says
Toobin: Roberts asks why Obama doesn't deal with DOMA constitutionality on his own
Toobin: Roberts sided with Obama on health care, but regards this as political spin
Editor’s Note: Jeffrey Toobin is CNN senior legal analyst and author of “The Oath: The Obama White House and the Supreme Court.”
After two days of tense arguments in the Supreme Court over same-sex marriage, we don’t know for certain how the justices will rule on either California’s Proposition 8 or the Defense of Marriage Act. But we did see – over and over – Chief Justice John G. Roberts’ irritation with and contempt for the Obama administration.
Roberts’ attitude was manifest on both days, and it was directed at Donald Verrilli, the solicitor general. The chief justice wasn’t complaining about Verrilli’s performance, but rather about the Obama administration policies the solicitor general was trying to defend.
Verrilli took a peculiar position in the Prop 8 case. He focused on the eight states, including California, that have civil unions that offer gays and lesbians equivalent rights to marriage. Verrilli said those states violated the equal protection clause, because the only reason they denied same-sex couples the word “marriage” had to be out of hostility toward them.
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But, as Roberts knew, this was a political tightrope walk for the administration. The eight states were largely blue, and they probably wouldn’t mind giving couples full same-sex marriage rights at this point. But the states that don’t allow civil unions are red, and they would resent Obama trying to impose same-sex marriage on them. So Obama backed off on that political challenge, and Roberts noticed.
“Is it the position of the United States that same-sex marriage is not required throughout the country?” the chief justice asked Verrilli, who hedged in response. “You’re saying it’s got to happen right now in California,” Roberts went on, “but you don’t even have a position about whether it’s required in the rest of the country.” The chief’s contempt was palpable.
That hostility to Obama was evident on Wednesday, too. In the Defense of Marriage Act case, the Obama administration announced it would not defend the law – that it would urge the Supreme Court to declare it unconstitutional.
This drew Roberts’ ire: “The executive’s obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.”
The clear implication of comments by the chief justice on both days is that he believes the president is using his arguments before the Court as part of his broader political strategy. In some ways, this is not much of a surprise. Any administration regards its positions before the court as political sallies as much as legal assertions. But Roberts clearly thinks Obama has gone too far in the political direction.
There is some irony in Roberts’ ire, of course, because the chief justice very publicly – and unexpectedly – saved the central legacy of the Obama administration last year when he cast the deciding vote in favor of the Affordable Care Act. Obama has every reason to be grateful to the chief. But the chief apparently feels he has been repaid with political spin rather than legal courage.
Conflict between a liberal president and a conservative chief justice is inevitable. On same-sex marriage, there was no hiding that conflict. As the president serves out his term, the chief justice – who will surely outlast Obama in office – may remain a displeased audience for Obama’s arguments.
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The opinions expressed in this commentary are solely those of Jeffrey Toobin.