The Nerve of John Roberts


The chief justice calls out the executive branch for doing precisely what the Supreme Court has done during his own tenure.

Joshua Roberts/Reuters

John G. Roberts, Jr., the chief justice of the United States, snapped at a Justice Department lawyer Tuesday during oral argument -- a rare display of anger and annoyance from a jurist who made a name for himself in Washington by being consistently courteous and courtly. Evidently, the chief justice wasn't happy with the way the federal lawyer was trying to gloss over a policy change within the executive branch. Here's how Tony Mauro, the great Supreme Court reporter, described the action for the National Law Journal:

During routine arguments in an ERISA health insurance case titled US Airways v. McCutchen, Roberts zeroed in on footnote 9 in the government's brief, which described a position taken in previous ERISA cases by Bush Administration Secretary of Labor Elaine Chao and then stated that "upon further reflection ... the Secretary is now of [a different] view."

Roberts said angrily, "That is not the reason. It wasn't further reflection. We have a new secretary under a new administration, right?" He was referring to Obama administration labor secretary Hilda Solis.

Joseph Palmore, the assistant to the solicitor general arguing in the case, agreed, and Roberts continued, "It would be more candid for your office to tell us when there is a change in position that it's not based on further reflection of the secretary. It's not that the secretary is 'now of the view;' there has been a change. We are seeing a lot of that lately."

When Palmore interjected that the law had changed in the last decade, Roberts replied, "Then tell us the law has changed. Don't say the secretary is now of the view. It's not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous."

A little disingenuous. This from a judge who disappeared the scope of the Commerce Clause in the Affordable Care Act case. This from a judge who gutted decades of First Amendment precedent in the Citizens United case after reaching out, unilaterally, to expand the scope of that campaign finance case. This from an ideologue whose conservative "activist" court, over the past seven years, has "burn[ed] through many of the precedents they don't like," according to Jeffrey Toobin, court-watcher and author of "The Oath."

The executive branch changes its views of the law all the time -- from administration to administration (as was the case above) and even within the confines of an administration's term (as is the case with the Defense of Marriage Act). And when it does so it typically seeks to downplay the significance of the change. But guess what? That's precisely what the court -- and especially this court under the direction of its chief justice -- does as well. From Bush v. Gore to District of Columbia v. Heller, there is plenty of disingenuity to go around.

The chief justice's petty little tirade only serves to draw attention to that fact. After hearing him go after the attorney, a reasonable observer could just have easily said to the chief justice: "The real reason that First Amendment and Second Amendment jurisprudence has changed in the past half decade, the biggest reason that affirmative action and the Voting Rights Act are in jeopardy, is because the Supreme Court's makeup has changed." The Supreme Court may be made of marble, but it's still a glass house.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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