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Many years ago, a leading scholar sat down to pen a letter and dated it “Year 1 of American Independence.” The date was not July 4, 1776; it was Feb. 1, 1865, the day after congressional passage of the 13th Amendment.
By voting the way he did in King and writing the opinion he did, Chief Justice Roberts did exactly what any responsible and fair judge should have done. But his decision in this year’s health care case still deserves a great deal of praise—and much, much more than his decision in the last one.
While there are many people who deserve credit for the court’s historic decision in Obergefell, there’s one more who should go on the list: President Barack Obama. He deserves credit not just for the powerful support his administration provided in Obergefell itself, but also for his decision not to defend DOMA four years earlier. It’s a helpful reminder of the power of the presidency, and how it can play out in unexpected ways.
Standing among the crowds of happy Americans celebrating the victory for marriage equality on the courthouse steps, the nation was continuing along its arc of progress, and history was being made. Chief Justice Roberts, however, chose to make himself a footnote to that history rather than be a part of it.
Nearly 150 years ago, our nation redeemed the Constitution from the sin of slavery, guaranteeing liberty and equality under the law to all persons, and giving to Congress sweeping new constitutional authority to help realize our Constitution’s promise of equal citizenship stature for all Americans. This term at the Supreme Court, the justices reaffirmed the fundamental constitutional truths at the heart of the Fourteenth Amendment, and of the civil rights laws passed to realize its goals, that demand true equality.
Chief Justice Roberts has used his power to entrench the ACA—against demands from the left for a command-and-control version of the ACA individual mandate, and against conservatives' strategy of killing the ACA in court. This, Roberts concluded, is “the type of calamitous result that Congress plainly meant to avoid”—and which, the chief justice made crystal clear, he will be loath to permit, in this case and any other challenge the law’s opponents might cook up.
Justice Kennedy concluded his opinion with majestic language, observing that same-sex couples “ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Chief Justice Roberts’s dissent notwithstanding, Obergefell v. Hodges will be a great legacy of the Roberts Court, just not of John Roberts himself. And the Constitution will have had everything to do with it.
Opinions like Scalia’s are what lead members of the public to conclude that the justices are just politicians in robes and that the Court is just an “extension of the political process”—exactly what the Chief Justice has repeatedly said he does not want. Today, by fairly interpreting the law and applying well-established principles of statutory construction, the Chief Justice and Justice Kennedy helped show that at least some justices can sometimes put law over politics. Let’s hope they continue to do that in the future.
The decision the Court reached today was the only one consistent with well-established legal principles and the text and history of the ACA. But that didn't stop three of the Justices from coming out the other way. Roberts has said he doesn't want the Court to be seen as just an "extension of the political process." By putting law over politics, the Chief Justice and Justice Kennedy helped demonstrate that it won't be seen as such today. And that's a very good thing.