If avoiding becoming a campaign issue was one of Chief Justice John Roberts' reasons for providing the fifth vote to uphold the Affordable Care Act in June, it has worked. That doesn't mean that the makeup of the court is any less an issue than it was last spring. Four justices are their 70s. Whoever is president in the next four years could shape court decisions for decades to come, either cementing a conservative majority or moving back from the brink.
Forget about the days when mostly moderate Republican justices exercised independence. That rarely happens now, Roberts' decision on ACA being the exception that proves the rule.
When Congress passed the law nicknamed Obamacare in March 2010, an overwhelming majority of constitutional scholars predicted the court would uphold its constitutionality. After all, it fit neatly into decades of legal precedent.
But in the tense days leading up to the decision in June, most of these same experts had become convinced that the law would be struck down: They had heard intemperate rhetoric from the bench from Justice Antonin Scalia, plus a clear lack of understanding from Justice Samuel Alito about how insurance works. And Justice Clarence Thomas had a conflict of interest: his wife had made big bucks working against the law. Besides, the court's conservative majority had already shown a willingness to ignore precedent in the abominable Citizens United decision, which blew up the nation's campaign-finance laws. Two years later, we have the court to thank for the Billionaires' Club that has so influenced the election campaign.
At first, Roberts' ACA decision was hailed by some, and attacked by others, as a correction to the court's conservative tilt. Within days, unprecedented leaks from within the court itself confirmed that he had changed his mind at the last minute.
We think author and court-watcher Jeffrey Toobin was on to something when he surmised that Roberts had not "discovered his inner moderate." By playing the supposed statesman on this one decision, Roberts kept criticism of the court to a simmer, possibly building acceptance for even more decisions curtailing civil rights while favoring the interests of corporations over their employees and consumers. And then there are the perennial concerns like abortion rights, protection for the accused, and limits on presidential power.
So during this last month of the presidential campaign, there must be at least some discussion of the court's makeup.
A century of progress on rights for ordinary Americans hangs in the balance.