Chief Justice John Marshall sought to build the legitimacy of the Supreme Court by reaching unanimous decisions by ruling narrowly on issues before the Court.  According to Jeffrey Rosen, the President and CEO of the National Constitution Center, current Chief Justice John Roberts has tried to do a similar thing.  “He was going to try to persuade his colleagues to put institutional legitimacy above all . . . it is important for the Court to be perceived above politics.”

Unfortunately, it hasn’t worked that way for Roberts who in his first term had more five-four decisions than any other term, and opinions included personal attacks between justices.

Then came the Citizens United Decision that struck down the federal campaign contribution limits on corporations.  Rosen said it had been reported that Roberts favored a narrow decision, but Justice Anthony Kennedy wanted a broader decision that equated corporate speech with free speech of natural persons and, hence, striking down contribution limits.  Chief Justice Roberts had to assign the opinion to Kennedy to keep his majority, according to Rosen.

“That just shows much of Roberts’ ability to forge consensus is contingent on the judicial philosophies and inclinations of the other justices . . .”1

Roberts’ inclinations can be seen on the ruling on the Affordable Care Act, where he wrote the majority opinion striking down the individual mandate under the commerce clause of the Constitution, but upholding it as a tax.  According to Rosen, Roberts did this out of a concern for institutional legitimacy.

by Patrick Gaffney

by Patrick Gaffney

1 Blankenship, Gary.  “Rosen talks about judicial history, the Roberts’ court in modern politics.”  The Florida Bar News.  February 15, 2017.