John Roberts: With ‘ObamaCare’, the Supreme Court’s New Swing Vote?

Bill Clark / CQ Roll Call(WASHINGTON) — When Glenn Beck starts selling T-shirts calling you a coward, you’re no longer the hero of the right sitting on the highest bench in the land.

Such is the fate of one John G. Roberts Jr., the Chief Justice of the Supreme Court, appointed by George W. Bush, who once was conservatives’ white knight. The columnist David Brooks said back then that his “personality shines.” Mitt Romney, appealing to conservatives in his run for president, said on his website that he’d “nominate judges in the mold of Chief Justice Roberts.”

Now Roberts is as good as Russ Feingold to them. After casting the deciding vote Thursday to uphold “ObamaCare,” Roberts learned what it’s like to be a judge without a party.

“I don’t want to have a beer with Justice Roberts,” moped Republican congressman Phil Gingrey. “I’d like to pour one on his head.”

“I feel like I just lost two great friends: America and Justice Roberts,” wrote GOP Rep. Jack Kingston on Congress’s main public outreach platform, Twitter.

Surely there is a consolation for conservatives somewhere. Mitt Romney’s campaign boasts of raising a bunch of money from supporters angry over the Supreme Court ruling. New York Jets owner Woody Johnson cracked at a Romney fundraiser, “I think Judge Roberts did this intentionally, because he’s really revved up our base.”

If you want to find Roberts, you can check the aeries on Mediterranean archipelagos. Speaking at a judges’ conference Thursday, he joked that after the health care ruling, taking a trip to Malta to teach was a “good idea,” and that he’d be staying at “an impregnable fortress” for a while as the right revokes his GOP pennant.

Few people actually know what passed through Roberts’s mind as he decided he would let President Obama keep the biggest legislative win of his presidency, though some people, speaking on background, suggested his role as chief justice shaped his approach.

The thinking goes that as the head of the Supreme Court, your voice counts just a little bit more, and you might get a little less wiggle room, even if you get just one vote as the other eight justices do. Roberts has been on the Supreme Court for only half a dozen years; at 57, he could easily stay there for another three decades, so he’s still carving out his role as chief justice.

At the same time, while observers have leapt to label Roberts the next swing justice, it’s probably too soon to say whether that’s possible at all. While Roberts did provide the crucial fifth vote upholding the so-called individual mandate in the health care law, he did so on incredibly nuanced terms — and he actually rejected the idea, supported by the four liberal justices, that the mandate was constitutional on its own.

Instead, Roberts ruled that the only way the mandate is constitutional is under Congress’s taxing power, a backup argument the administration used, and that Roberts exploited as a sort of supreme loophole. And who knows how he’ll vote in the high court’s next term on gay marriage, affirmative action and voting rights?

More than brand him as the court’s new David Souter, Roberts’s ruling could help revive the Supreme Court’s reputation as a fair judge of law, the way that Roberts himself described it in his confirmation hearing — as an umpire calling balls and strikes. Many liberals lost faith in the court in 2000, after the ruling in Bush v. Gore, along party lines, gave Bush the presidency. They were similarly depressed after the Citizens United case that led to super PACs, which benefit Republicans.

“Chief Justice Roberts has done much to repair the enormous damage done to the Court’s reputation by Bush v. Gore and exacerbated by Citizens United,” wrote Laurence Tribe, a Harvard professor who taught Roberts. “By faithfully applying those precedents — regardless of whatever personal distaste he may have had for the law he upheld — the chief justice helped restore Americans’ confidence in the political neutrality of their highest court.”

That’s probably not how a lot of angry conservatives feel as they reel from the news that “ObamaCare” is going to stick around. The shirts hawked on Beck’s website ($30, by the way), paint Roberts’s face in mustardy colors above the word “COWARD.”

“How could you? I trusted you,” cried the late-night caricature-of-a-caricature Stephen Colbert. “Where’s the man who said unlimited corporate money was speech? Where’s the man who voted against equal pay for women? I don’t even know who you are anymore.”

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