Right-Wing Media Vilify Roberts, Ignoring His Very Conservative Record As Chief Justice

In the wake of the Supreme Court's decision to uphold the Patient Protection and Affordable Care Act, right-wing media figures claimed Chief Justice Roberts' decision to uphold the Affordable Care Act shows that he's liberal. But Roberts' recognizing the constitutionality of the Affordable Care Act doesn't change his record as presiding over the most conservative and corporate-friendly court in recent history.

Right-Wing Media Attack Roberts As A Liberal

Big Government: “Thanks To President Bush ... We Have A Chief Justice Who Proved Himself To Be A Feckless Political Manipulator.” In a June 28 Big Government post, Breitbart.com editor-at-large Ben Shapiro attacked Chief Justice Roberts, claiming Roberts' recognizing the constitutionality of the Affordable Care Act proves he is “a feckless political manipulator.” From the post:

I knew that Roberts was a bad pick because he didn't have a proven track record of adherence to the Constitution. He was picked by President Bush because Bush knew he didn't have a track record - and he knew that Roberts would sail through the confirmation process without a hitch.


So now, thanks to President Bush and the conservative clique that trusted him, we have a Chief Justice who has proved himself to be a feckless political manipulator, someone more interested in having lunch with Justice Ginsburg than in upholding clear Constitutional violations. And we've got him for the next three decades, at minimum. [Big Government, 6/28/12]

MRC's Gainor Attacks “Awful Bush Admin Decision To Put In Roberts” Who “Show[ed] The Worst Of Government.” Media Research Center's vice president for Business and Culture Dan Gainor reacted to the Supreme Court's ruling by saying: “So American public sold out by awful Bush admin decision to put in Roberts. I'm shocked.” And that Roberts “show[ed] the worst of government. Big government is the enemy of freedom.” From Twitter:

[Twitter, 6/28/12; Twitter, 6/28/12]

Fox's Starnes: “George W. Bush Was Just Like His Daddy - Appointing Liberals To The Bench.” Fox News Radio's Todd Starnes responded to Roberts' decision to uphold the Affordable Care Act by claiming “George W. Bush was just like his daddy - appointing liberals to the bench.” From Twitter:

[Twitter, 6/28/12]

But Analysts Say The Roberts Court Is The Most Conservative In Modern History

Nate Silver: Roberts' “Supreme Court May Be Most Conservative In Modern History.” In a March 29 post to The New York Times' FiveThirtyEight blog, Nate Silver pointed out that a statistical analysis of the Supreme Court “already finds that the current court is the most conservative since at least the 1930s.” From The New York Times:

If President Obama's health care bill is stricken by the Supreme Court, liberals will take it as evidence of judicial overreach, or at least that the court has shifted far to the right. One statistical method for analyzing the Supreme Court, in fact, already finds that the current court is the most conservative since at least the 1930s.


Although Chief Justice Roberts is not especially more conservative than Chief Justice Rehnquist under their system, chief justices can sometimes exert an overall pull on the court based on the way they manage it, and this may be one of those cases.

The post was accompanied by a chart which plotted the ideology of the court with the black line representing the median justice:

[The New York Times, 3/29/12]

Mother Jones: “By Several Measures, The Court Headed By Chief Justice John Roberts Is The Most Conservative Since The Early 1970s.” A June 26 post on Mother Jones noted that analysis by law professors Andrew Martin and Kevin Quinn found that "[b]y several measures, the court headed by Chief Justice Roberts is the most conservative since the early 1970s." From Mother Jones:

If the Supreme Court strikes down all or part of the Affordable Care Act, a.k.a. Obamacare, it will undoubtedly cement the Roberts court's reputation as the most conservative in years. That's not an entirely a matter of opinion. Thanks to an amazing trove of data collected by law professors Andrew Martin and Kevin Quinn and the Supreme Court Database, the court's rightward trajectory can be confirmed.

By several measures, the court headed by Chief Justice John Roberts is the most conservative since the early 1970s, when Richard Nixon named Warren Burger to replace the famously liberal Earl Warren. Not only is its most conservative member (Clarence Thomas) nearly as conservative as the Burger court's most conservative member (future Chief Justice William Rehnquist), its most liberal member (Ruth Bader Ginsburg) is considerably less liberal than previous justices on the left side of the spectrum.

The report included the following chart showing the conservative trend of justices since 1937:

[Mother Jones, 6/26/12]

New Yorker: “Roberts Has Served The Interests, And Reflected The Values, Of The Contemporary Republican Party.” In a May 25, 2009, article in The New Yorker, Jeffrey Toobin wrote:

After four years on the Court, however, Roberts's record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party. [The New Yorker, 5/25/09]

New York Times: Chamber Of Commerce-Supported Decisions Won 13 Of 16 Cases, Often By Five Vote Majorities. A December 18, 2010, New York Times article by Supreme Court correspondent Adam Liptak noted that “The [Chamber of Commerce] now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases” which was an “indication of the Roberts court's leanings on business issues.” From The New York Times:

The chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber's side. One of the them was Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech” by lifting restrictions on campaign spending.

The chamber's success rate is but one indication of the Roberts court's leanings on business issues. A new study, prepared for The New York Times by scholars at Northwestern University and the University of Chicago, analyzed some 1,450 decisions since 1953. It showed that the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests.

The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953. [The New York Times, 12/18/10]

CAC: Roberts' Court Gave Conservative Chamber “Its First 'Perfect' Term Before The Supreme Court. The Constitutional Accountability Center pointed out that ” the U.S. Chamber of Commerce is edging towards what could be its first 'perfect' Term before the Supreme Court since at least 1994." From the Constitutional Accountability Center:

As we approach the end of the October 2011 Term, it is hard to think about almost anything other than the Court's impending health care decision. But there is another developing story that has so far been overlooked. Without much fanfare, the U.S. Chamber of Commerce is edging towards what could be its first “perfect” Term before the Supreme Court since at least 1994. With today's decision in Southern Union Company v. United States, the Chamber has declared victory in all seven of its cases that have reached a clear outcome (two are additionally classified as “other” because the Court avoided addressing the issue at stake on procedural grounds, and in one the Chamber filed on behalf of neither party).

This string of seven straight victories brings the Chamber's overall win/loss rate before the Roberts Court up to 68% (60 of 88 cases). As we have reported in prior studies, this is significantly higher than the Chamber's success before the Rehnquist Court of 56% (45 of 80 cases from 1994-2005), and dramatically higher than its success rate before the Burger Court, when the Chamber only won 43% of its cases (15 of 35 from 1981-1986).

The post included the following graph showing the Court's record of upholding Chamber of Commerce-supported decisions:

[Constitutional Accountability Center, 6/22/12]

Roberts Acknowledged The Constitutionality Of The Health Care Reform Bill

Roberts: “The Federal Government Does Have The Power To Impose A Tax On Those Without Health Insurance.” In his opinion, Chief Justice Roberts pointed out that the government's ability to penalize those who choose not to purchase insurance “may reasonably be characterized as a tax” and “is therefore constitutional.” From the Supreme Court:

The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.


The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax. [Supreme Court, 6/28/12]

Roberts' Decision Is Based On Solid Legal Foundation

Brian Galle: The Responsibility Requirement “Is Clearly Constitutional” Based on Congress' Wide Taxation Authority. In an April 5, 2011, post on The Yale Law Journal, Boston College law professor Brian Galle pointed out that the individual responsibility requirement aspect of the ACA is “clearly constitutional under governing Supreme Court precedent” because “the IRR is an exercise of Congress' power '[t]o lay and collect taxes.'” From The Yale Law Journal:

First, let me make clear that the IRR is an exercise of Congress's power "[t]o lay and collect taxes." The federal district courts in Virginia and Florida, as well as some commentators, argue that the IRR is not a tax at all, apparently because it is not clearly labeled as a “tax.” Ordinarily, Congress does not have to invoke specifically the source of authority for its enactments. But Randy Barnett and Erik Jensen both argue that courts give special deference to exercises of the taxing power and that the source of this deference is really just a refusal to look behind Congress's choice of the “tax” label. So, on these accounts, if there is no label, there is no special deference.

It takes a particularly obstinate--even hostile--reading of the IRR provision to find that it is not labeled a “tax.” True, the result of a failure to obtain insurance is in some places called a “penalty.” But the letter t is followed by the letters a and x, in that order, forty-five times in the section of the Tax Code setting out the insurance requirement alone. Those who are subject to the requirement to provide insurance for themselves and their dependents are called “taxpayers.” The period for which they are required to carry insurance is called a “taxable year.” The amount payable for those who do not acquire qualifying insurance is in part determined according to a “percentage of . . . the taxpayer's household income for the taxable year.” “Household income,” in turn, is defined as a slight modification of “adjusted gross income,” which is not defined in the statute, but which cross-references an important component of the federal income tax.


Once again, the IRR is clearly constitutional under governing Supreme Court precedent, and normatively it should not be otherwise. The IRR solves major social problems, while the constitutional clauses that putatively restrain it serve no purpose at all except resolving long-dead political stalemates. Perhaps those compromises deserve to be honored, if for no other reason than to facilitate future compromise. But honor is fully paid by narrowly respecting the literal terms of the deals; critics who rely on those provisions propose instead some unspecified set of quasi-libertarian norms whose outcome would rest solely in the hands of judges. [The Yale Law Journal, 4/5/11]

CAP: Decisions Against ACA Were “Wrong” Because Of Congress' “Broad Leeway In How It Raises Money.” In a March 7 post, the Center for American Progress pointed out that a previous 11th Circuit decision against the Affordable Care Act “was wrong” in part because of Congress' “broad leeway in how it raises money.” From the Center for American Progress:

Congress has broad leeway in how it raises money

Congress also has the authority to “lay and collect taxes” under the Constitution. This power to tax also supports the minimum coverage provision, which works by requiring individuals who do not carry health insurance to pay slightly more income taxes. Taxpayers who refuse insurance must pay more in taxes while those who do carry insurance are exempt from this new tax. For this reason, the law is no different than dozens of longstanding tax exemptions, including the mortgage interest tax deduction, which allows people who take out home mortgages to pay lower taxes than people who do not. [Center for American Progress, 3/7/12]