Howard Fineman is a journalist, blogger and editor of Huffington Post
Roberts assured the nation during his 2005 confirmation hearing that he would be an umpire of constitutional law, but instead he has become the cleanup hitter, manager and team owner.
In a now familiar two-step of jurisprudence, the Roberts Court on Wednesday tactically ceded ground it did not regard as crucial — this time, on two gay rights cases. Cable TV was full of smiling gay rights activists, happy that the Supreme Court had effectively restored same-sex marriage in California and ensured federal benefits for same-sex couples married in the 12 states (and D.C.) that sanction it.
But politically, these tolerant rulings on the country’s social fabric deflect attention from the Roberts Court’s deeper goal: to remove the federal government as an impediment to corporate, state and local power. In other words, to dismantle a framework of progressive laws and court rulings stretching back to Teddy Roosevelt, the New Deal and the Great Society.
“Roberts has a long-range plan for radical change,” said Norman Ornstein, a senior scholar at the American Enterprise Institute. “And he’s moving faster than he thought possible when he started eight years ago.”
Viewed over a series of years, the major decisions of the Roberts Court exhibit a contrapuntal political rhythm — and a sharp awareness of how it’s all playing.
Roberts may have wanted to be cautious initially, but his eyes grew wide when presented with the Citizens United case. In 2010, he led the court to declare that corporations, like individuals, have free speech rights that bar the government from limiting what they spend independently on campaigns and elections.
The reaction was swift — and negative.
“I think the chief justice was taken aback a bit,” said Ornstein. “I don’t think he expected as much criticism as he got.”
So even as the court sought ways to limit federal regulation of business and markets, Roberts boldly created a majority to uphold the central provision of President Barack Obama’s Affordable Care Act in the midst of the 2012 campaign.
Court observers figured — rightly as it turned out — that Roberts would balance that move with the one he made on Tuesday: writing the opinion that eviscerated the Voting Rights Act and essentially freed the Republican-dominated South from the last vestiges of federal control of the region’s election laws.
And then observers figured that once the Supreme Court had lurched to the right on voting rights, it would angle back on gay rights. As his final act in the two-step for this term, Roberts wrote the majority opinion against supporters of California’s Proposition 8, but let Justice Anthony Kennedy do the honors in striking down the Defense of Marriage Act.
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