Will John Roberts find a constitutional right to equal marriage?

John Roberts, Chief Justice of the United States (from Wikipedia)

Chief Justice John Roberts is usually a reliable vote among the conservatives on the nine-member court. Yet in NFIB v Sibelius (2012), he voted with the four liberals to find that the Affordable Care Act (ACA) was constitutional. He did so on narrower grounds than the four liberals, relying on the taxation power rather than the commerce clause. It is widely accepted that Roberts had originally intended to strike down the law, but changed his mind in the month beforehand, based in part on the political calculus that it would damage the Court’s political reputation were it to strike down Barack Obama’s key legislative achievement. It would have appeared too partisan for the five justices appointed by Republican presidents to vote to strike it down, with the four appointed by Democratic presidents to vote to uphold it, and affected the court’s reputation as a neutral umpire calling ball and strikes.

The ACA is back before the court this term, in King v Burwell, not on the validity of the law, but its application. But if Roberts did not hinder it in 2012, he is unlikely to do so now after so many have already taken advantage of it. And in this case, he has cover from Anthony Kennedy, who voted against the ACA in NFIB, seems likely to uphold its application in this case.

The blockbuster case of this term is Obergefell v Hodges and its related cases, which will be heard this Tuesday, and is likely to settle the question of equal marriage for gay couples in the United States. The court themselves admit the difference between it and other cases this term with a link to briefs for the case on their home page, and agreeing to release the audio recording of oral argument on Tuesday, rather than waiting till the end of the week as standard.

There’s no reason to expect that any of the five justices who struck down the Defense of Marriage Act in United States v Windsor (2013) will not apply similar reasoning to state bans on same-sex marriage. But Roberts was in the minority in Windsor. Why would he vote to strike down these bans at a state level if he would not do that to the federal legislation two years ago?

John Roberts was appointed as Chief Justice in 2005 at the age of 50. Four of the associate justices are aged between 76 and 82. We should expect that Roberts will remain leading the court till at least 2030. Roberts is politically astute enough to know that this case will be regarded as a landmark. Will he want to risk the opprobrium of legal analysts in a decade’s time appearing before him wondering how he could have got it so wrong? It’s easier for Antonin Scalia, not being in the pole position of Chief Justice, or indeed Samuel Alito, who like Roberts was appointed in 2005 by George W. Bush.

Scalia and Alito both gave lengthy dissents in Windsor, with which Clarence Thomas joined. Roberts, by contrast, wrote a succinct dissent, of a mere three pages. He joined Scalia only on the jurisdictional matter, finding that the court should not have decided the case at all, as the United States government was not contesting Edie Windsor’s claim. Roberts’ short dissent justified the Defense of Marriage Act on the basis of uniformity of marriage rules, rather than the blistering terms of Scalia’s dissent defending the enforcement of traditional moral and sexual norms.

Might Roberts wish to deprive Kennedy the pleasure of his place in history of completing a series of judgments in favour of constitutional protection to gay people. From Romer v Evans (1996), to Lawrence v Texas (2003), to United States v Windsor (2013), Anthony Kennedy wrote all of the case law progressing gay equality. Eric Segall recently wrote about the rivalry between Roberts and Kennedy for perceived control of the court.

The author who writes opinion of the court is assigned by the most senior justice in the majority. If the majority is the same five as in Windsor, that would be Anthony Kennedy, who will surely assign it to himself. But if Roberts were to join the majority as the sixth vote in favour of requiring all states to license a marriage between two people of the same sex, he could then choose to assign the opinion to himself.

So, both because he should be able to project the landmark status of the decision, and because of rivalry with the other moderate conservative voice, don’t be surprised if Roberts strikes down the bans. But aside from the politics of it, there’s nothing in any of his other votes on social reform cases to suggest that he will do so!