There are enough instances of this kind of judicial review to call into question what Roberts actually believes in. His first dramatic tilt came in his famous 2012 actions in the case involving Obama’s Affordable Care Act, in which Roberts accepted the unconstitutionality of the act’s “individual mandate” under the Constitution’s Commerce Clause but justified it, through contortions of logic, as a tax.
As Biskupic writes in her biography, “Some conservatives believed he was not voting his true sentiment, but trying to shore up his reputation and institutional legacy.”
Then there was Roberts’s bizarre majority opinion in last year’s case involving the administration’s desire to ask a citizenship question in the census. While acknowledging that the executive branch has broad discretion on what questions to ask, Roberts declared that Commerce Secretary Wilbur Ross’s rationale for wanting the question “appears to be contrived.” Because of timing pressures, the ruling effectively thwarted the administration’s interest without actually addressing the merits of the case; and it did so by peering into Ross’s head and purporting to discern what he was thinking. When laws are assessed based on that kind of rationale, the concept of “a nation of laws” is in serious danger.