Is Chief Justice Roberts Really Consistent? Think Citizens United and Shelby County

Jeffrey Rosen makes the case in the NYT Sunday Review, seeing a similar deference/minimalism in deferring to the political branches in the same sex marriage and Obamacare cases.

But what about his utter lack of deference in the campaign finance and voting rights areas?  Rosen says:

However, the chief justice’s commitment to judicial restraint and a limited conception of the court’s institutional role is not unvarying. He has written or joined opinions striking down federal campaign finance laws and voting rights laws. Earlier last week, he wrote an opinion for the court that removes one of the last New Deal farm programs propping up price supports for raisins as a violation of the Fifth Amendments prohibition on takings of property without just compensation. In all of these cases, however, Chief Justice Roberts identified a particular clause of the Constitution — the First Amendment, the Fifth Amendment or the 14th Amendment — that he believed invalidated the federal law in question. In the marriage equality case, he concluded that no clause of the Constitution clearly protected a right of marriage equality, which is why he accused the majority of substituting its own policy preferences for those of the people, as reflected in state legislation.

This is unconvincing because those clauses (First Amendment’s free speech clause, or the equal protection clause, or for that matter the 15th amendment) are not self-defining or limited in thinking about the role of the courts versus the role of the democratic process.

Indeed, I think my dean, Erwin Chemerinsky, has the better of the argument on this point:

The difference between the majority and the dissents, and between the liberal and conservative commentators, is about the appropriate role of the Supreme Court in a democratic society.   Not surprisingly, the four dissenting opinions all accuse the majority of undue judicial activism and usurping the democratic process.   This is always the dissent’s charge when the majority strikes down a law.  Of course, none of the four dissenters seemed the least bit concerned with deference to the political process or avoiding judicial activism when two years ago they all were part of the majority in striking down key provisions of the Voting Rights Act that had been passed almost unanimously by Congress and signed into law by President George W. Bush.   In that case, Shelby County v. Holder, it was not even possible to tell what constitutional provision the majority thought was violated by the Voting Rights Act.  None of the four dissenters were the least bit concerned with deferring to the political process when they declared unconstitutional key provisions of the Bipartisan Campaign Finance Reform Act in Citizens United v. Federal Election Commission.

UPDATE:  See also this tweetstorm from Mike Sacks.

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