As long as Justice Anthony M. Kennedy is on the court, he will most often be the decider when the justices split along their familiar ideological fault lines. But, slowly and quietly, Roberts is the one trying to build its legacy. He sees it as somehow exempt from the partisan fugue that long ago enveloped Washington. Justice Stephen G. Breyer has worried that the public might see him and his colleagues as "nine junior-varsity politicians"; public approval of the Supreme Court is falling. But while all of the justices bristle at the notion of a political court, the eponymous head of the Roberts court has the most to lose. After all, its decisions cannot be respected if the court is not respected. "It is a very serious threat to the independence and integrity of the courts to politicize them," Roberts said at his 2005 confirmation hearings.
Roberts, 60, jokes about the "odd historical quirk" that gives the chief justice only one vote. But he has learned to use the tools that come with the job: He shapes the discussion at conference; he writes the court's opinion, or assigns it strategically, when he is in the majority; he's happy to settle for nonthreatening, incremental changes that may bloom later into something more. And last term, what Roberts has described as the chief justice's "particular obligation to try to achieve consensus" paid off. The share of unanimous decisions soared to 66 percent, a level not seen since the 1940s. The share of 5-to-4 decisions, high during Roberts's tenure compared with those of other chief justices, fell to 14 percent, the lowest since he joined the court.
And then here comes Obamacare II. In King v. Burwell , to be argued Wednesday, plaintiffs say the text of the law must be interpreted in a way that would neuter it, canceling health insurance subsidies for about 7.5 million Americans in at least 34 states. Can Roberts's portrayal of the Supreme Court as above politics survive another round with the most partisan issue of the decade?
Nonpartisan Supreme Court...? A bit late for that I'd say.