Roberts is emerging as the court’s most intriguing player. John Roberts's big moment

Chief Justice John Roberts pledged during his Supreme Court hearings to be a mere umpire of the law.

But as a legacy-defining decision nears, Roberts is emerging as the court’s most intriguing player.


Justices are expected to rule Thursday — during their final public sitting of the term — on the fate of President Barack Obama’s signature health law. While much of the early attention focused on swing-vote Justice Anthony Kennedy, many court watchers predict Roberts will be the architect of the ruling.

To a great extent, the decision will shape the way history views Roberts’s stewardship of the high court.

( See also: A viewer's guide to the SCOTUS health ruling)

The chief justice may not hold the key vote to what the court does on the pivotal case, but he could be in a position to dictate how the court does it.

“The health care case will undoubtedly define his chief justiceship,” said Jeffrey Rosen, a law professor at George Washington University and legal affairs editor for The New Republic. “The scope of the law, the amount of people affected, the fact that it’s the centerpiece of the president’s domestic agenda, all make it as politically charged as imaginable.”

Roberts, who was appointed chief justice in 2005 by President George W. Bush, did not author a majority opinion in any of the cases argued before the court in March or April, increasing the odds that he’ll write the health care decision.

Even if the 57-year-old chief justice does write the opinion, there’s considerable uncertainty about what side he would take. At stake is not only Roberts’s own legacy but also the court’s reputation as an impartial arbiter of the law.

Would he uphold the individual mandate and the law on a 6-3 vote, joining with Kennedy and the liberals for a ruling that crosses ideological and political boundaries? Or would he strike it down 5-4, placing this decision alongside major, closely divided votes on Bush v. Gore and Citizens United?

Some experts saw a possible hint of Thursday’s decision in the Arizona immigration case decided Monday. In that case, Roberts joined with Kennedy and three of the court’s liberal justices to uphold the federal government’s power to control immigration.

“It is very interesting and might signal the kind of role that he could play in health care, if he chose,” Rosen said. “He and Justice Kennedy joined the three liberals in a bipartisan and nationalistic opinion. It was notably moderate in its tone and scope, in contrast with the partisan and states’ rights dissents from Justices [Clarence] Thomas and [Antonin] Scalia.”

“The nationalism in the Arizona case might be a harbinger of similar deference [to the federal government] on health care,” Rosen added. “Things might well come out differently, but if Roberts chooses [to uphold the health law], the Arizona case could be a model of his success in achieving that.”

A political science professor at Southern Methodist University, Joseph Kobylka, also said Roberts’s role in the immigration case might have some implications for the health care ruling.

“The Arizona case is obviously about federal power, though in a different area,” Kobylka said. “I don’t have a real good sense of how this is going to pan out — I don’t think anyone does — but the fact that he was in the majority in the Arizona case speaks to me either of a more general deference to federal power or a strategic sense, either of which would favor [upholding] the health care policy.”

When the chief justice is in the majority, he assigns the writing of the majority opinion — or he can reserve that duty for himself, giving him a bit more power than the other justices to influence the scope of a ruling.

One challenge Roberts has faced: Conservative decisions are almost always the ones faulted as partisan, at least recently. In the past couple of decades, liberal-leaning decisions have by necessity been bipartisan, since a majority of the court’s justices have been Republican appointees and the liberal justices lack the votes to resolve cases without some support from their more conservative colleagues.

Kobylka said Roberts sometimes seems to vote with the majority to narrow the court’s holding or to avoid ambiguity in the court’s rulings.

“It is not inconceivable that Roberts voted strategically and assigned [the immigration opinion] to Kennedy to have the narrowest possible opinion written given the configuration of forces on the court,” Kobylka said. “Assuming strategic behavior, he will jump to the winning side to create the smallest wake of the decision. That’s the possible connection with the health care case. … In a close call, Roberts has to weigh the prestige of the court, his legacy, if that’s a concern for him, and where the court enters the political fray.”

Some longtime courtwatchers say the five-judge opinion Roberts signed onto in the immigration case signifies nothing about the outcome in the legal fight over health care reform.

“It would be totally wrong” to see such a link, said Tom Goldstein, a regular litigator before the high court and founder of Scotusblog. “They’re very different cases. … There are overlapping themes about states’ rights, but the federal immigration power is not the same as federal commerce power.”

“There’s nothing more than a coincidence here that these cases ended up being decided so closely together,” he said.

None of the experts interviewed for this story expect Roberts to join with the liberals on the court to create a 5-4 majority to uphold the health care law. In fact, in his six years on the court, Roberts has never joined the liberal wing in a 5-4 case. He came close only once, authoring a rather obscure 5-3 ruling in 2006 that states had to make a more diligent effort to notify the owner of a property before executing a tax lien.

“If you’ve got a consensus on the right or a rough consensus on the right, that’s where he goes,” Kobylka said. Indeed, Roberts did just that in another ruling Monday, writing the dissent in a 5-4 case barring sentences of life without parole for juvenile offenders.

“Determining the appropriate sentence for a teenager convicted of murder presents grave and challenging questions of morality and social policy. Our role, however, is to apply the law, not to answer such questions,” Roberts wrote in the impassioned dissent, which echoed his claim at his 2005 confirmation hearings that “My job is to call balls and strikes and not to pitch or bat.”

Conservative scholars also expect Roberts to pen a majority opinion in the health care case, but they don’t think that reveals much about where the court is headed.

“I agree with the sentiment that Roberts is likely writing the lead or at least one of the lead opinions in health care, but that doesn’t tell us in this instance the disposition,” said John Eastman, a professor at Chapman School of Law in California.

Still, Eastman, a critic of the health care law, said he wouldn’t be surprised to see Roberts side with the Obama administration and uphold the law. “He’s a creature of the Washington administrative state. That’s his background,” the professor said, noting that Roberts has spent almost his entire professional life in Washington.

Eastman also warned against assumptions that the health care ruling alone will define the Roberts Court, since it could go on for decades.

“This guy’s only in his 50s. He could run this thing out for 30 years,” Eastman said. When Roberts steps down, “no question that in the lead of that story one of the top cases talked about will be this one no matter how it comes down, but over the next 25 years I suspect he’ll see a lot of cases, particularly if they strike it down.”

One prominent commentator on the court said supporters of the law should not interpret predictions that Roberts will write the majority opinion as a positive sign.

“It would not fill me with confidence if I were in the Obama administration,” said Jeffrey Toobin of The New Yorker. Roberts “is a very conservative George W. Bush appointee who was extremely hostile to the law during oral arguments.”

The intense speculation over Roberts’s role is to some extent the product of the outsized interest in the health care case. The tantalizing wait has led in many quarters to a fevered reading of the tea leaves in nearly every public move by each of the justices.

When Justice Elena Kagan joked last week that a ruling she’d written on an Indian tribe-related case was “Maybe not what you’ve all come for today,” some took it as a sign that the court’s liberal wing was in a relaxed mood that might signal a decision to uphold the health care law.

Lighthearted remarks Justice Ruth Bader Ginsburg delivered at a conference for liberal lawyers earlier this month produced the same kind of speculation at the Volokh Conspiracy blog. “The thinking — perhaps foolish — is that her tone in these speeches acts as a modest but not-entirely-useless barometer of how her side is doing,” George Washington University Law professor Orin Kerr wrote.

Conservative Justice Antonin Scalia’s fiery dissent Monday in the immigration case prompted some esteemed court watchers to speculate that his acrimony might reflect a little displaced anger from being on the losing side of the health care dispute.

In a commentary on Slate, former Acting Solicitor General Walter Dellinger painted the court’s immigration ruling as a stronger-than-expected win for the federal government.

He added: “And that is why Justice Scalia is so upset. (Unless … he is being anticipatorily mad about what may happen on Thursday. You think?)”