(The Root) — Without question, the Supreme Court's health care ruling boosted President Obama's legitimacy and his chances to hold onto the White House in the November elections. But perhaps even more importantly, the court's 5-4 decision to uphold the Affordable Care Act may have salvaged the increasingly questionable legitimacy of the Supreme Court. Chief Justice John Roberts' decision to side with the court's four centrists is perhaps best seen not only as an act of leadership, but also as an act of self-preservation.
The leadership of Roberts has increasingly come under fire over the past year. The Citizens United campaign finance decision — which upended decades of precedent and reversed course from decisions the court had made only a few years prior — dealt a sharp blow to the public's confidence in the court. Roberts has quite rightly been singled out for particular derision, because the decision contradicted key elements of the assurances he provided to Congress and the public at his 2005 confirmation hearing.
Then he pledged to respect precedent, and recognized the particular corrosive history of 5-4 decisions in controversial cases. One year after pledging to serve as an "umpire," Roberts preached from the bench that "the only way to stop racial discrimination is to stop discriminating based on race"; in subsequent years he firmly ensconced himself in a rigid five-member conservative majority that ruled lockstep in cases that reversed decades of precedent on the standard required for plaintiffs bringing civil suits (Iqbal v. Ashcroft).
He also sided with right-leaning justices on the requirements for plaintiffs bringing class action suits (Wal-Mart v. Dukes) and of course on the question of whether limits may be imposed on the timing and manner of corporate giving to political campaigns.
The fact that these decisions have all been held by a bare majority of the court's justices has opened up Roberts' leadership for particular scrutiny. Part of the job of the chief justice is to protect the integrity of the court, and that sometimes means serving as chief arm-twister, stewarding the reputation and good name of the court during his tenure and recognizing who must take responsibility for thinking about the effect that particular decisions will have on the court and on the public. This may influence the chief's decisions about when to release the decision in a controversial case (there was no question that the health care decision would fall on the last day of the term) and to whom to assign the responsibility of writing the decision in a particular case.
Pushing his colleagues to join an opinion or issue a unanimous opinion in particularly controversial cases may also fall within the chief justice's responsibility. Chief Justice Earl Warren famously campaigned among his brethren for months, mindful that less than a unanimous decision in Brown v. Board of Education would even further fracture the country and give Southern segregationists a toehold for their resistance to integration. The Little Rock Nine case, Cooper v. Aaron, was yet another instance in which it was important that all of the justices stand behind the chief's articulation of the court's power.
The importance of unanimous decisions in politically contentious cases has been recognized by the court under other chiefs since Warren. The Nixon-Watergate tapes case and even Clinton v. Jones were unanimous decisions of the court. If one reads the transcript of the oral argument in Clinton v. Jones and hears the deep skepticism expressed by both Justice Ginsburg and Justice Breyer about the prospect of allowing civil suits against a sitting president, it is apparent that something happened between the oral argument and the release of the decision to produce a unanimous decision allowing the Jones suit to go forward.
The nadir of Justice Rehnquist's tenure as chief was Bush v. Gore. Derision heaped on the court's decision because the case installed the Republican candidate as president. In addition, because of the embarrassingly thin reasoning of the court's opinion, the ridicule paled in comparison to the deep suspicion engendered by the fact that the 5-4 decision split along party lines. The sense of betrayal that accompanied that 5-4 decision — from both liberals and conservatives alike — should have served as a cautionary tale to Roberts.
Instead, he has been singularly unsuccessful in exercising the kind of leadership that presses the justices on the court to reach decisions reached by a larger consensus than that of the entrenched conservative majority. Thus, it came as no surprise two weeks ago, when it was revealed that the Supreme Court's popularity rating had dropped to an all-time low of 44 percent.
That is, until this week's health care decision. Justice Roberts' decision to break with his conservative compatriots to uphold the Affordable Care Act, given his track record as chief, is a monumental step forward in leadership on the court. The public's sense that the court is politically captured and rigidly ideological has been reinforced by decisions in which the four conservative justices all ruled together or in which the four centrist justices rule together in politically controversial cases. Every time a justice from either the conservative or centrist camp departs from their perceived ideological home to rule in a way that is surprising and unpredictable, it bolsters the legitimacy of the court in the eyes of the public. That's why the inclusion of justices from across the ideological spectrum in support of the majority decision in the Arizona immigration case (pdf) — despite some of the troubling aspects of the court's decision — also gave the court an institutional legitimacy boost last week.
By all means we should give credit where credit is due. Without question, President Obama should be pleased and even grateful that Chief Justice Roberts saved the health care law. But we should also remember that in so doing, the chief justice of the United States saved both the legitimacy of the court as well as his own.
Sherrilyn A. Ifill is a professor of law at the University of Maryland School of Law and a civil rights lawyer.
Correction: A previous version of this story stated that the Supreme Court's popularity rating was 28 percent instead of 44 percent. We regret the error. We have also clarified that justices from across an ideological spectrum (not only Justice Sotomayor), who supported the majority decision in the Arizona immigration case, gave the court a legitimacy boost last week.
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