The Supreme Court isn't that liberal

At the climax of the musical 1776, the fate of America as a new nation comes down to the vote of a single individual.  On that momentous occasion, the decision is made based on what would assure the voter the greatest anonymity.  In the play and the movie versions, delegate James Wilson decides to vote for the American colonies to leave Great Britain because otherwise his name would go down in history as the man who blocked American independence; his desire was to be remembered (if at all) as just one of those who voted for it.

There has been much analysis of the recent Supreme Court decisions long the “liberal/conservative” axis, and while that has been the standard for several decades, I think it may have out-lived its usefulness with the Roberts Court.  I think many of the recent decisions that have been perceived as “liberal” (supporting the Affordable Care Act and gay marriage) are better explained by the Court simply keeping its head down, just like James Wilson.

I think Chief Justice Roberts’ opinions are driven more by his philosophy of how the Supreme Court should be perceived by the public rather than political belief.  It used to be that every year in June the Supreme Court would hand down dozens of opinions, many of whose titles would become instantly recognizable.  The Court would issue sweeping decisions that would transform American society, from Miranda to Roe v. Wade to Bush v. Gore.

Recently the number of “name” decisions has diminished, as the Court has avoided many debates and limited their holding in others to narrowly apply only to the parties in the case, making no sweeping conclusions. I suspect that Robert’s goal is to diminish the role of the Supreme Court in resolving social debates, allowing the political process to take a more demonstrative role.  For decades, particularly since the warren Court, the Supreme Court has protected the rights of the minorities against the wishes of the politically powerful; I believe Roberts wants “democratic” political forces to win, whether the political winds blow to the left or to the right.

Take the decision supporting the Affordable Care Act (ACA), NFIB v. Sebelius, 132 S.Ct. 2566 (Roberts 2012). If the Roberts court had followed the lead of most conservatives in striking down the ACA, it would have firmly established the supremacy of the Judicial branch over the Legislative and Executive branches.  Nine unelected old men (and women) would have thwarted the popular will of the people acting through Congress and the President.  The Roberts court would have risked being equated with the obstructionist court in the early days of the Franklin Roosevelt administration, which struck down aspects of FDR’s economic recovery plan based, not on legal principles, but on a conservative economic philosophy. 

Roberts didn’t want to hand social liberals a complete victory, so he voted to uphold the ACA but based his reasoning not on the ubiquitous Commerce Clause, but on Congress’ power to levy taxes.  This simultaneously reins in the Supreme Court’s power while not giving Congress carte blanche, and reminding people of the least liked aspect of the ACA, the fact that technically it imposes a “tax” on people who refuse to buy health insurance. 

Similarly, with gay marriage, Roberts chose to get out front with the liberals on the Court and “ride the wave” of growing support for same sex couples.  Support for same sex marriage increased faster than, for example, support for interracial marriage, which the court took nearly two centuries to approve.  Striking down gay marriage would have created a firestorm of protest in many parts of the country; making gay marriage universal will engender far less outrage and will be concentrated in mostly Southern states.

Analyzing Chief Justice John Roberts’ recent decisions on a liberal/conservative axis makes less sense than looking at them through the lens of judicial activism/judicial passivism.  By systematically lowering the profile of the Supreme Court in resolving major social and political issues, Roberts is trying to ensure that the Court will never revert back to being the driving force behind social change in America that is was under Chief Justices Earl Warren and Warren Earl Burger.