A confident Roberts 'steers his own path here'

  • Article by: DAN EGGEN , Washington Post
  • Updated: June 29, 2012 - 12:35 AM

Some observers likened the chief justice to one of his heroes, John Marshall in the landmark Marbury vs. Madison case.

Chief Justice John Roberts

Photo: Pablo Martinez Monsivais, Associated Press

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WASHINGTON - When he was up for confirmation to the Supreme Court, John Roberts famously compared his job to an umpire in baseball, making sure that everybody plays by the rules. "But it is a limited role," Roberts added. "Nobody ever went to a ballgame to see the umpire."

Until now, perhaps. The umpire took center stage Thursday as the Republican chief justice who upheld President Obama's health care law, delighting liberals who have long despised him and enraging conservatives who considered him one of their own. The decision stunned legal observers on both sides and made Roberts the focus of heated invective from conservative activists and some Republican members of Congress, who derided him as a "traitor."

But many of those familiar with Roberts' thinking say the calibrated decision is fully in keeping with the outlook of a studious former Catholic schoolboy who made his way to be first in his class at Harvard -- conservative in his views but also reverent toward institutions.

"It underscores that the chief basically does what he thinks is the right interpretation of the law and not what is necessarily popular or needed to curry favor," said Richard Lazarus, a Harvard University law professor who is close to Roberts. "He takes on both sides and steers his own path here and also steers a path for the court. He is very much in control."

Roberts is nothing if not self-confident, according to many who have known him over the years, a personable and meticulous persuader who spent much of his career in the heights of the Washington political and legal establishment. By providing the pivotal vote in approving "Obamacare," he did what many considered impossible -- and exhibited a command of the court that has eluded many of his predecessors.

Roberts may have sided with liberals to save the signature domestic achievement of Obama's presidency, but he also gave conservatives important legal beachheads that could pay off down the road. He abandoned his perch as one of the court's consistent conservatives in order to play peacemaker between liberals ready to uphold the law in full and conservatives who wanted to pull the plug.

And he did it all without the help of Justice Anthony Kennedy, who most often plays the tie-breaker.

"There's no question this was a moment of truth for John Roberts," said Jeffrey Rosen, a law professor at George Washington University. "He had to decide what kind of court he wanted to preside over."

A number of legal observers compared Roberts's threading-the-needle approach Thursday to the strategy used by one of Roberts's judicial heroes, Chief Justice John Marshall.

In the landmark 1803 case, Marbury vs. Madison, Marshall established the court's power of judicial review that persists to this day. But the decision itself was a legal pretzel, concluding that Thomas Jefferson's administration had acted illegally but also that the court lacked jurisdiction.

In other words, the decision set the stage for two centuries of jurisprudence while avoiding an immediate political conflict with a sitting president. Bradley Joondeph, a Santa Clara University law professor who clerked for Sandra Day O'Connor, said Roberts avoided a similar conflict with Obama while establishing conservative limits on federal power. "All told, it was a stroke of judicial genius," Joondeph wrote on his blog. "A Marbury for our time."

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