Ted Cruz on John Roberts: Why Let the Facts Get in the Way?

Next week marks John Roberts's 10th anniversary as Chief Justice of the United States, but it's clear there's at least one person who won't be celebrating: Senator Ted Cruz. At the second Republican presidential debate, Cruz called Roberts's nomination a "mistake" and described the Chief Justice as a "liberal," promising that as President he won't appoint any "philosopher kings" intent on "imposing their liberal policies" on the American people.

Senator Cruz has been busy running for president, so perhaps he hasn't been paying much attention to what the Supreme Court's been doing lately. If he had been, it would be clear: John Roberts is no "liberal." And one need only look at the end of the Court's most recent Term for evidence of that. After all, in the six biggest cases that were decided at the end of last Term, the Chief Justice voted for conservative outcomes -- very conservative outcomes -- in five of them.

Consider, for example, the Chief Justice's vote in Obergefell v. Hodges to deny nationwide marriage equality to same-sex couples. His vote in that case not only conflicted with the Constitution's text and history, but also with his own confirmation hearing testimony in which he explained how courts should analyze cases involving fundamental rights. Ignoring his own testimony, he claimed in dissent in Obergefell that the Constitution "had nothing do with" the Court's decision and pejoratively referred to the Court's majority as "[f]ive lawyers [who] have closed the debate" over marriage. It's difficult to get more conservative than that.

Or consider Roberts's vote in Texas Department of Housing and Community Affairs v. Inclusive Communities Project to gut the Fair Housing Act, a landmark civil rights law designed to end racial discrimination and segregation in housing. Despite the fact that every lower court to have considered the issue had concluded that the FHA allows for the type of claims at issue in the case, Chief Justice Roberts said no. He joined Justice Alito's dissent from Justice Kennedy's powerful opinion explaining why the text and history of the statute compelled the result reached by the Court.

And there's Roberts's vote in Michigan v. EPA to invalidate an important regulation limiting the emission of hazardous air pollutants (like mercury and arsenic) emitted by electric utilities. Roberts joined Justice Scalia's opinion for the Court, which faulted the Environmental Protection Agency for failing to consider costs at one stage of its decision to regulate, even though the law contains no explicit requirement to do so and even though the EPA did consider costs at other stages of its process "again and again and . . . so on," as Justice Kagan pointed out in dissent.

To those three votes one could also add Roberts's vote to limit states' ability to use independent redistricting commissions to draw congressional district lines--fortunately, Roberts was in dissent in that one--and his vote to allow Oklahoma to continue to use a lethal injection protocol that, as Justice Sotomayor described it in dissent, "leaves [death row inmates] exposed to what may well be the chemical equivalent of being burned at the stake." So that's five very conservative votes in the big cases decided at the end of the Court's last Term. What more could Senator Cruz want from the Chief Justice?

Well, the answer to that is simple. What really has Cruz up in arms is not Roberts's overall record, but his vote to allow the nationwide availability of tax credits under the Affordable Care Act at the end of last Term.

In King v. Burwell, political opponents of the ACA were trying to achieve through the courts what they'd been unable to achieve through the political process, and Cruz, one of those opponents, is upset that they lost. Indeed, they lost big, with the Chief Justice writing an opinion (joined by Justice Kennedy and the Court's four more liberal members) making clear that the Court has no desire to see political opponents of the law continuing to try to use the courts as a tool in their political fight.

But that was hardly an example of the Chief Justice imposing his "liberal policies" on the American people. As Roberts made clear in his opinion, his vote in that case was compelled by the text and structure of the law, not to mention the Court's own precedents. Moreover, all that Roberts was doing was allowing the "legislative plan" put in place by Congress to be enforced. As he explained, it is the responsibility of the Court to "respect the role of the Legislature, and take care not to undo what it has done." In short, Cruz is not upset that Roberts was political, he is upset that Roberts was not political enough.

To be sure, as I have discussed elsewhere, there has been something of a shift in Roberts's voting record over the last few years, as he has begun to distance himself from at least some of his conservative colleagues, at least some of the time. King was one important example of that, and there have been others, as well. This shift is important because it means there will sometimes be cases in which no one should count Roberts out. But it doesn't mean he's a liberal. Far from it.

When one looks at Roberts's overall record, it's clear that while John Roberts may not be the most conservative Justice on the current Court, he's nonetheless very conservative. But that probably won't stop Senator Cruz from saying otherwise. Why let the facts get in the way?

This piece is also crossposted at CAC's Text and History blog.