I happen to agree with the dissenters in yesterday’s case. But I do think Roberts was not behaving at all politically, either in the narrow “pragmatic” sense of avoiding an immediate political firestorm or looking for room to maneuver in the next term of the Court; or in the venal sense of “shifting left” when we had a right to expect better of him; or in the “ain’t he a clever statesman” sense of constructing a kind of trap for President Obama, laying down principles for future decisions, and preserving the Court’s long-term reputation.
Consider first of all how little reason Roberts actually has to care about any of those things. Supreme Court justices are given life terms. No really effective attack has successfully been made against the Court since the immediate aftermath of the Civil War. (More’s the pity.) Neither Bush v. Gore nor Citizens United can possibly have cost him even an hour’s sleep, notwithstanding the bleating of liberal law professors and editorial writers. Public opinion polls on how people view the Court? Pfooey. Who cares?
Did I just try to get inside his head myself? Maybe a little, but only in order to defend the probity of the only thing that has actually come out of his head—his written opinion.