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Will Justice Roberts ignore politics on gay marriage and Obamacare?

Chief Justice John Roberts

In September, John Roberts will celebrate his tenth anniversary as chief justice of the United States. But before he gets there, he could be deciding two of the biggest cases of his tenure so far, cases that will test his oft-avowed commitment to putting the law over politics and principle over partisanship.

So as the chief justice rings in the New Year, he should resolve to stay true to his word to keep partisanship out of the Supreme Court.


The first of these two cases is King v. Burwell, which is about the Affordable Care Act and whether individuals in the 34 states who purchase their health insurance through will continue to get the tax credits that help them purchase that insurance. The text, purpose, and history of the statute all make clear that tax credits should be available to all qualifying Americans, regardless of where they live, but opponents of the ACA have indicated that they hope and expect to win at the court based on politics, that is, simply because a majority of the justices were appointed by Republican presidents.

This politicization of the court is exactly what Roberts has repeatedly said he doesn’t want. At his confirmation hearing, he expressed concern that if courts are viewed “as simply an extension of the political process” it undermines their “independence and integrity.” Early in his tenure, he explained that “keep[ing] any kind of partisan divide out of the judiciary” was a “high priority.” And he made that point again in a speech this summer, expressing concern that the American people will view the court as a “political entity.” As he said then, “I worry about people having that perception, because it’s not an accurate one about how we do our work.” So when the court hears King next year, it will present the chief justice with a critical opportunity to show that he — and his court — can truly put the law over politics. If they don’t, the impact of the court’s decision will be hugely consequential not just for the country, but for the court, for the chief justice, and for the legacy of both.

King’s unlikely to be the only big case the court hears next year. In January, the court will decide whether to hear one or more cases about one of the defining legal issues of our time: LGBT equality. Specifically, the court has been asked to decide whether states may ban same-sex marriage. While the issue isn’t on the court’s calendar yet, it almost certainly will be. And when it is, it shouldn’t be decided based on politics; it should be decided based on constitutional principle and precedent (in particular, the court’s 1967 decision in Loving v. Virginia that held that state laws banning interracial marriage were unconstitutional). That’s what happened in 2013 when the court considered the constitutionality of the provision of federal law that defined marriage to be between a man and a woman. In that case, the court, in a 5-4 decision, held that discriminating against married same-sex couples for the purpose of determining federal benefits violates the Constitution’s requirement of equality under the law.

At the time, the chief justice disagreed with the court’s decision, and wrote his own opinion to explain that the court wasn’t deciding whether states could ban same-sex marriage. But as Justice Scalia noted at the time — and almost every lower court to consider the issue has agreed since — it’s difficult to read the court’s 2013 decision as anything other than an indication of how it will decide this issue. If that’s right, a decision recognizing the constitutional right to same-sex marriage will likely be one of the biggest legacies of the Roberts Court. This case will thus present another big question for the chief justice: When historians of the court look back on this moment, does he want them to say that John Roberts wasn’t part of one of the greatest legacies of the Roberts Court because he put politics ahead of the Constitution?

So as we prepare to ring in the New Year, Chief Justice Roberts should be looking ahead to a couple of very big decisions he may have to make in 2015. Those cases could define more than just his year; they could define his legacy. Let’s hope this year Chief Justice Roberts resolves to make his legacy one of putting the law above politics.

Brianne Gorod is Appellate Counsel at the Constitutional Accountability Center.