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 Conservative ire was trained particularly on Chief Justice John
Roberts, who wrote the majority opinion that preserved the subsidy
regime underpinning the Affordable Care Act, even though another
Republican appointee, Justice Anthony Kennedy, also voted with the
majority.
Roberts, who was appointed to the court by Republican President
George W. Bush, has voted with court conservatives on many landmark
cases, including ones involving campaign-finance laws and voting
rights. But he also enraged opponents of the Affordable Care Act
three years ago when he cast a deciding vote in rejecting a
different legal challenge to the law.
“He’s let down the [conservative] movement,” said Curt Levey of the
Committee for Justice, which advocates for conservative judicial
nominees. “He may feel he has no obligation to the movement.”
Some conservatives have been skeptical of Roberts from the start,
saying he was maddeningly opaque about his judicial philosophy
during his 2005 Senate confirmation hearings. Roberts had spent only
about two years as a federal appeals court judge, which meant a
sparse paper trail illuminating his judicial philosophy.
In opening remarks during his confirmation hearing before the U.S.
Senate judiciary committee in 2005, Roberts spoke neutrally, noting
that "Judges are not politicians who can promise to do certain
things in exchange for votes" and vowing to "confront every case
with an open mind."
“We wanted to be supportive, but there were these nagging doubts,”
said Carrie Severino, policy director of the conservative Judicial
Crisis Network. “You can’t assume someone is going to go south, but
it appears the concerns were warranted. It’s what happens when you
nominate someone who doesn’t have a clear record.”
Levey said that the pressure will now fall on Republican
presidential hopefuls to spell out in detail their views on court
appointments - and simple generalities about being faithful to the
letter of the U.S. Constitution won’t cut it.
“It might have been enough before today for presidential candidates
to spout the usual things about appointing someone who interprets
rather than writes the law. I think you’ll have to say more now,” he
said. “Each candidate will have to do something to show the base how
they will avoid appointing another Roberts.”
Mark Levin, a frequent critic of the court who heads the
conservative Landmark Legal Foundation, said Republican senators,
too, will “need to take their responsibility far more seriously and
much more aggressively scrutinize these nominees.”
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Beyond that, Jay Sekulow, a prominent conservative lawyer who has
argued a dozen cases before the high court, suggested that the
healthcare ruling will prompt a debate on the presidential campaign
trail over the justices’ proper function. “What the court said that
is that if legislation is written poorly, we can fix it,” he said.
“That’s very different from the traditional role of the court.”
Indeed, some Republican candidates were scathing Thursday in their
assessment of the decision. Mike Huckabee, the former Republican
governor of Arkansas, termed it “an out-of-control act of judicial
tyranny.” Ted Cruz, the senator from Texas, accused the high court
of usurping the role of Congress. “Unelected judges have once again
become legislators, and bad ones at that,” he said.
In that vein, the ruling, along with a decision on the legality of
same-sex marriage bans that could come as early as Friday, could
hand Republicans a twin-barreled weapon with which to galvanize
conservative voters into action. Four years ago, conversely, it was
Democrats who made a Supreme Court ruling a centerpiece of their
election message, blasting the court’s decision in the Citizens
United case, which opened the door for massive corporate campaign
expenditures.
Obama’s successor, whether Republican or Democrat, could play an
outsized role in shaping the future of the court, said Severino.
“The next president could replace Justice [Ruth Bader] Ginsburg or
possibly [Justices] Kennedy and Scalia,” she said. “It would be
World War III in terms of the amount of influence that president
would have.”
(Additional reporting by Alana Wise in New York; Editing by Caren
Bohan and Sue Horton)
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