RENEE MONTAGNE, HOST:
It would not have seemed possible when John Roberts ascended to the chief justice of the Supreme Court. But as the high court's new term begins today, the chief justice, despite his overall conservative record on the bench, has become a punching bag for candidates vying for the Republican presidential nomination. NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Presidential candidates have often criticized the court, pledging that they would appoint a different kind of justice. It's been a half-century, though, since politicians have put a chief justice by name in the crosshairs of criticism. And what is puzzling about the Roberts's critique is that this George W. Bush appointee was hailed by the right when he was appointed 10 years ago. And he has a consistently conservative record on most issues.
He's voted with the court's conservatives to strike down most of the legal limits on campaign spending, opening election campaigns nationwide to a flood of new cash. He's consistently supported an individual's right to bear arms. He wrote the court's opinion striking down the heart of the Voting Rights Act. He's consistently opposed any sort of racial preferences. And he wrote the leading dissent when the court last term struck down state laws banning same-sex marriage.
On only one flashpoint subject has he parted ways with some or all of the court's most conservative members - Obamacare. And yet, in the first two televised debates, Republican candidates took turns pummeling him, characterizing his appointment as a grave mistake and suggesting that Roberts follows a political - not a legal - path. If President George W. Bush had appointed someone more conservative than Roberts, said Senator Ted Cruz...
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TED CRUZ: Obamacare would have been struck down three years ago and the marriage laws of all 50 states would be on the books.
MONTAGNE: Of course, Roberts actually dissented in the same-sex marriage case. Jeb Bush, whose brother appointed Roberts, was less strident but suggested nonetheless that Roberts was a, quote, "politically expedient choice" because he was a conservative who could be confirmed by the Senate. And Mike Huckabee said that he would require anyone he appointed to oppose all abortions and to see religious freedom as the first of all rights.
Nobody thinks it will be easy for Chief Justice Roberts or other justices to ignore such talk. But the job of the chief justice is, among other things, to guard the independence of the judiciary and to preserve the court's institutional role as a dispassionate arbiter of the nation's laws and Constitution. Notwithstanding the GOP debate critique, the Roberts court is most often a conservative court. But it's closely divided, and last term, for the first time in a decade, the court's liberals prevailed in the majority of 5 to 4 rulings. They did that by picking off not just Roberts and Justice Kennedy on Obamacare but other conservative justices in other cases.
Most experts see those liberal victories, however, as a product of an idiosyncratic mix of cases. And this term, the issues play much more to the strength of the court's conservatives. There are cases that could further cut back affirmative action in higher education, hobble or destroy public employee unions and make it easier to limit voter participation in elections. There's a strong likelihood that the court will revisit the abortion question, as well as the issue of birth control coverage under Obamacare.
TOM GOLDSTEIN: The worry is does what goes around come around?
TOTENBERG: Supreme Court advocate Tom Goldstein is publisher of the leading Supreme Court blog.
GOLDSTEIN: And the writing on the wall sure seems to be up there that has got the left scared bejeezus.
TOTENBERG: The court, for instance, for the first time is being asked to determine the meaning of the one person, one vote principle. Does it mean that state legislative districts should have the same number of people or the same number of eligible voters? Does the population count include children, immigrants - both legal and illegal - and others like those with a criminal record who are thus ineligible to vote? Or does the population count include only those eligible to vote or even just those registered to vote? Virtually all state and local governments currently draw districts based on total population. But if those challenging that practice prevail, it could dramatically shift political power away from districts with lots of children and immigrants, and it would likely give Republicans a big boost in state legislative election.
Also likely to come before the court are election cases involving strict voter ID laws and other provisions that make it more difficult to vote. The union case could also have huge political consequences by crippling public employee unions and possibly all unions. The case pits the practical needs of collective bargaining against the First Amendment. Under the court's longtime precedent, when employees vote to unionize, workers who don't join the union must still pay a portion of the collective bargaining costs so as not to be free riders on the backs of those who do pay. But the court now looks poised to reverse that longtime precedent. In two recent cases, four justices - and possibly five - have suggested that requiring such so-called fair share payments violates the nonmembers free speech rights.
Waiting in the wings at the high court are two politically incendiary cases, one involving a Texas law that seeks to dramatically cut back on Roe versus Wade and make abortions difficult to obtain. The other involves the mandated coverage of birth control under Obamacare, which exempts churches, synagogues and the like, but requires religious organizations like hospitals and universities to notify the government to obtain a similar exemption. Nina Totenberg, NPR News, Washington.
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