While the rest of us were waiting on pins and needles last week to see whether presumed swing-vote Anthony Kennedy would find Obamacare Constitutional, one smarty-pants professor already knew that the seemingly hard-right Bush-appointee John Roberts would be the one to become “Chief Traitor of the United States” by siding with the liberals.
University of Massachusetts-Dartmouth political science professor Kenneth Manning published a paper back when Roberts was first nominated to the Supreme Court in 2005 suggesting that the ostensibly ultra-conservative Roberts had a squishy deferential streak that was being overlooked. Manning analyzed all 190 of the decisions in which Roberts participated while on the D.C. Court of Appeals and compared them to circuit court averages. Manning unsurprisingly found that Roberts was “very conservative” in his decision-making in criminal justice disputes and “exceptionally conservative” in civil liberties and rights cases. However, Manning also discovered that Roberts was actually a raging hippie when it came to labor and economic disputes (or, in Manning’s words, “more liberal than the appellate court average”).
Clearly, despite our hyperbole, Roberts is not a full-tilt liberal even when it comes to economic disputes. In finding Obamacare’s individual mandate Constitutional as a tax last week, Roberts took care to explicitly reject any expansion of Congress’s commerce clause power. Nonetheless, as Manning told The Washington Post at the time, Roberts does have a history of taking “a non-activist stance — a general reluctance to go out of his way and rule against government regulators.” For instance, in the cases Manning studied, “[i]f the EPA ruled against the chemical industry, the general tendency was to defer to the agency.”
Also, in case you’re thinking of placing a bet in some kind of ultra-nerdy gambling pool for future Supreme Court cases, take note that Roberts’s liberal streak is not entirely limited to economic and regulatory issues. While Roberts has rightly earned a reputation as a staunch conservative on some issues — he once endorsed a memorial service that called attention to “the abortion tragedy” while working in the Reagan White House and famously upheld the constitutionality of the arrest of a 12-year old girl for eating a french fry in a subway station during his time on the D.C. Circuit bench — he might be the surprise vote on others. While working at the law firm Hogan and Hartson, he did pro bono work for a gay rights group which successfully argued the landmark case Romer v. Evans.
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