First of all, he is a very cautious man, one who is very worried about the prestige of the court and the perception that it is above politics. This is not a man who wants to decide bitter, divisive, hot-button, explosive issues with 5-4 votes.
Roberts does not want to create judicial earthquakes. This is not a jurist who wants to blaze dangerous trails long before it is clear that the American public is ready to walk them. The last thing he wants is another Roe v. Wade, followed by decades of bitterness and civic strife.
Seen from this perspective, the Obamacare decision appeared to be an exception to the rules. While many conservatives called him a traitor, others noted that Roberts did that cautious thing that he does — he backed a narrow decision that made it harder to accuse the court of playing politics. After all, what is unusual about the federal government creating a new form of taxation that affects the whole population?
With that in mind, folks here inside the DC Beltway are asking a rather obvious question about the stunning news that the Supremes are going to address the nation’s hottest and most divisive issues — same-sex marriage and, perhaps, even whether sexual orientation can considered a condition leading to special, protected status for civil-rights claims, similar to race, gender, age, religion, etc. The court has, in the past, avoided a definitive statement on that issue, even in Romer v. Evans.
So the question many are asking: Why would the ever-cautious Roberts want to take on same-sex marriage at this point in the judicial game? Or look at that question from another point of view: Why would liberals on the high court want to take on this issue at this point, at the START of a second Barack Obama term? They know that their hand will only grow stronger in the next four years.
Thus, in recent weeks, most mainstream press coverage — while seeming to yearn for a clear gay-rights victory — has focused so much attention on the voices of liberal experts who were not sure that the timing was right for, well, a judicial earthquake. With all of that in mind, take a look at this Washington Post report, which begins by stating:
The Supreme Court put itself at the center of the nation’s debate over whether gay couples have the same fundamental right to marry as heterosexuals, agreeing Friday to review state and federal efforts to preserve a traditional definition of husband and wife.
In agreeing to hear cases from California and New York, the court raised the possibility of a groundbreaking constitutional decision on whether the right to marry may be limited because of sexual orientation. At the same time, the justices also will have the ability to issue narrower rulings on a subject that continues to divide the American public.
The cases will probably be heard in historic sessions at the court in late March, with decisions to come when the justices finish their work at the end of June.
As you would expect, a key part of this Post story focuses on the pivotal justice on the court — which would be Anthony M. Kennedy, a Republican who leans conservative on most economic issues and to the left on most cultural issues. Is it time for another landmark opinion that proves Kennedy is not one of THOSE Catholics?
The strategic implication is clear and has been for months: Will Roberts be able to prevent another 5-4 earthquake, with Kennedy providing more sweeping prose like the following in his Planned Parenthood v. Casey decision, the famous meaning-of-the-universe passage which he then referenced in the landmark gay-rights case Lawrence v. Texas:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Thus, the Post notes:
Central to the outcome of the term’s signature cases will be Justice Anthony M. Kennedy, who normally sides with the court’s conservatives but has written some of the court’s most important cases upholding gay rights. For instance, he wrote the Romer decision that the 9th Circuit used as the template for overturning Prop 8.
But some gay rights activists have worried about asking Kennedy and the court to move too far too quickly on what would be a sea change in the way Americans view marriage.
I was not surprised that, in this early Post story on this explosive topic, there was absolutely zero attention given to religious-liberty concerns. Those discussions will come later, when it will be all but impossible for mainstream newsrooms to avoid them — since religious doctrines and traditions were at the heart of the debates about DOMA and Proposition 8.
But here is what did surprise me about this story. Did I miss something or is one very important name — John Roberts — missing from this report? What will we learn about Roberts and his role in the court taking on this hot-button issue at this particular moment in time?
Trust me. People from coast to coast will want to know the answer to that one. Does Roberts have a plan to protect his beloved court?