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LIBERALS and conservatives were exercised and confused by the combination of Chief Justice John G. Roberts Jr.'s vote to uphold the Affordable Care Act's tax subsidies on Thursday and his dissent from the Supreme Court's decision recognizing a constitutional right of same-sex marriage on Friday. Both sides accused him of voting politically: On Thursday he was taken to task by the right, and on Friday by the left.

In fact, the chief justice's votes in both cases were entirely consistent and constitutionally principled. He embraced a bipartisan vision of judicial restraint based on the idea that the Supreme Court should generally defer to the choices of Congress and state legislatures. His insistence that the court should hesitate to second-guess the political branches regardless of whether liberals or conservatives win is based on his conception of the limited institutional role of the court in relation to the president, Congress and the states.

On Thursday, when Chief Justice Roberts wrote a 6-to-3 decision preserving a key part of the Affordable Care Act (for the second time), Justice Antonin Scalia accused him once again of engaging in liberal judicial activism. "The somersaults of statutory interpretation" the chief justice had performed in both health care cases, Justice Scalia wrote, signaled to America "the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."

The Roberts-Scalia debate is part of a longstanding argument about how judges should interpret laws passed by Congress. As Chief Judge Robert A. Katzmann of the United States Court of Appeals for the Second Circuit in New York argues in his recent book, "Judging Statutes," the chief justice embraces an approach called "purposivism," while Justice Scalia prefers "textualism." In Judge Katzmann's account, purposivism has been the approach favored for most of American history by conservative and liberal judges, senators, and representatives, as well as administrative agencies. Purposivism holds that judges shouldn't confine themselves to the words of a law but should try to discern Congress's broader purposes.

In the 1980s, when he was a lower court judge, Justice Scalia began to champion a competing view of statutory interpretation, textualism, which holds that judges should confine themselves to interpreting the words that Congress chose without trying to discern Congress's broader purposes. (By contrast, originalism, which Justice Scalia also embraces, holds that judges should consult both text and history to understand constitutional meaning.) Textualism, in this view, promises to constrain judicial activism by preventing judges from roving through legislative history in search of evidence that supports their own policy preferences. But in the view of its critics, like Chief Judge Katzmann, textualism "increases the probability that a judge will construe a law in a manner that the legislators did not intend." Chief Judge Katzmann, who was appointed by President Bill Clinton, also accuses Justice Scalia of inconsistency for consulting the intent of the framers in the case of constitutional interpretation but not statutory interpretation.

Chief Justice Roberts echoed these criticisms of textualism in his decision holding that federally created health exchanges were eligible for tax subsidies. "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them," the chief justice wrote, in a line that enraged conservatives. "If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter."

The chief justice's embrace of bipartisan judicial restraint in the second Affordable Care Act case was consistent with his embrace of the same philosophy in the first Affordable Care Act case in 2012, where he quoted one of his heroes, Justice Oliver Wendell Holmes Jr: "The rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act."

By construing the Affordable Care Act, twice, in ways that respect Congress's broader purposes rather than thwarting them, Chief Justice Roberts was not, as Justice Scalia charged, rewriting the law. Instead he was advancing the view that he championed soon after his confirmation: In a polarized age, it is important for the Supreme Court to maintain its institutional legitimacy by deferring to the political branches.

The chief justice's dissent on Friday from the court's 5-to-4 decision recognizing a right of same-sex marriage defended precisely the same vision. Once again, he quoted Justice Holmes for the same proposition that he invoked in the Affordable Care Act cases: "As this Court has been reminded throughout our history, the Constitution 'is made for people of fundamentally differing views.' "

His dissent in the marriage equality case is undoubtedly the fieriest opinion the chief justice has written on the court. "Five lawyers have closed the debate and enacted their own vision of marriage," he writes. He compares Justice Anthony M. Kennedy's same-sex marriage opinion to Roe v. Wade and to Lochner v. New York, a 1905 case striking down maximum hour laws for bakers, both of which he considers prime examples of judicial activism.

CHIEF JUSTICE ROBERTS insists that his passionate opposition to Justice Kennedy's majority opinion is based on his commitment to judicial restraint, not on his personal disagreement with same-sex marriage. In his dissent on Friday, the chief justice said he would not "begrudge" the celebrations that would follow. Instead, his passions were engaged by his commitment to the court's limited role in American politics.

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.

It's understandable that liberals and conservatives are disappointed with the chief justice for rejecting positions they deeply favor. But Chief Justice Roberts's relatively consistent embrace of judicial deference to democratic decisions supports his statement during his confirmation hearings that judges should be like umpires calling "balls and strikes." As he put it then: "Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire."

Although the chief justice's statement was subsequently mocked, both the Affordable Care Act cases and the marriage equality case show that he meant what he said. Whether writing for the majority or in dissent, he believes that judges should set aside their policy views and generally uphold laws unless they clash with clear prohibitions in the Constitution. In the long term, if he continues to pursue this conception of the deferential role of the court, he may help liberals and conservatives more readily accept their Supreme Court defeats.

A version of this article appears in print on , on Page SR4 of the New York edition with the headline: John Roberts, the Umpire in Chief. Order Reprints | Today's Paper | Subscribe

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Opinion | John Roberts, the Umpire in Chief

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LIBERALS and conservatives were exercised and confused by the combination of Chief Justice John G. Roberts Jr.'s vote to uphold the Affordable Care Act's tax subsidies on Thursday and his dissent from the Supreme Court's decision recognizing a constitutional right of same-sex marriage on Friday.

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Through the Bill of Rights Institute I have been able to learn new skills, obtain vast knowledge, travel to the site of historical events, discuss history with scholars, and acquire quality teaching materials to use in my classroom.

- Bev Lucas, Government & U.S. History Teacher, Wichita, Kansas

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Through the Bill of Rights Institute I have been able to learn new skills, obtain vast knowledge, travel to the site of historical events, discuss history with scholars, and acquire quality teaching materials to use in my classroom. - Bev Lucas, Government & U.S. History Teacher, Wichita, Kansas

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1. Religion, Assembly, Speech, Press, Petition; the first thing you do is learn how to speak

2. Right to bear arms; bears have 2 arms

3. No quartering of troops unless there is war; 3's a crowd (it would be crowded if soldiers came and stayed at your house)

4. No search without a warrant; We searched 4 a warrant.

5. Due process and protection of property; I plead the 5th.

6. Fair and speedy trial; Speedy Six

7. Jury trial in civil cases; There are 27 Amendments and 7 deals with $20

8. No cruel and unusual punishment; Imagine 8 as a pair of handcuffs.

9. Rights not specifically mentioned in the Constitution should not be assumed not to exist; #9 makes more rights mine

10. Rights of the states; Austen Powers

11. Sovereign immunity; - the 1's are equal and so are states and they can sue each other

12. Electoral college reform; The 1,2 position (President is #1, VP is #2)

13. Slavery abolished; - at 13 you become a free man

14. Equal protection under law and due process of law; It abolishes the 3/5 Compromise and 4 is between 3 and 5.

15. Right to vote shall not be abridged because of color or previous servitude; 15 wrote that blacks can vote

16. Income tax; six: i stands for income, x stands for tax

17. Election of senators; SEventeen SEnators

18. Prohibition; No alcohol if you're 18.

19. Women's suffrage; At 19 you're already a woman, so you can vote

20. Terms of office for president and Congress; Moved inauguration date to January 20.

21. Prohibition repealed; You can drink if you're 21

22. President term limits; Limits the president to(2) two(2) terms.

23. Washington DC suffrage; 3 votes 2 Washington DC

24. Poll taxes abolished; -

25. Presidential disability; 25 if he's alive

26. Voting at age 18; 2+6=8, 8+10=18

27. Congressional pay raises; the 27th amendment is the last amendment, and a pay raise for congress is the last thing we want.

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Justice Showtime-Showcasing the Supreme Court

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Justice Showtime-Showcasing the Supreme Court

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Justice Showtime-Televising the Supreme Court

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Hip Hughes

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Article III For Dummies: The Judiciary Explained

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How to Flex Your Rights During Police Encounters

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Flex Your Rights is an educational nonprofit dedicated to educating the public about understanding their rights during encounters with law enforcement.

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via Flex Your Rights

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Steve Silverman & Scott Morgan on Freedom Watch

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10 Rules for Dealing with Police (Full-Length)

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MORE INFO ON DEALING WITH POLICE ...... Know-Your-Rights DVDs: http://flexyourrights.org/shop Official Facebook Page: http://facebook.com/FlexYourRights Twitter: http://twitter.com/FlexYourRights Get Flex Your Rights Emails: http://flexyourrights.org/subscribe Got questions about dealing with cops? We got answers: http://flexyourrights.org/faq

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Live blogging and analysis of the SCOTUS

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It is that time of year again. As we near the end of the Supreme Court term, we are experiencing another round of prognostications on whether Justice Anthony Kennedy will retire, leaving another vacancy for President Donald Trump to fill. (Last year's take on the possibility of Kennedy's retirement can be found here.) About this time last year, the headlines ranged from describing the conflicting retirement rumors to exploring the potential effects and dire consequences of such a vacancy. This year pundits on the left and right are forecasting along similar lines.

Kennedy, the second-oldest justice on the Supreme Court at 81 (after Justice Ruth Bader Ginsburg, who is 85), is at an age where retirement not only is reasonable but should be expected. This is not to say he will retire this year or anytime in the imminent future. Across the history of the Supreme Court the two oldest justices to leave the court - Justices Oliver Wendell Holmes and John Paul Stevens - did so at the age of 90. (Professor Lee Epstein's Supreme Court Justices Dataset is a main resource used for justices' age-related data.) Both retired from the bench. On the other end of the spectrum, Justice Benjamin Curtis was the youngest justice ever to retire at the age of 47, in 1857. Focusing on justices who joined the Supreme Court after the beginning of the 20th century, Justice Wiley Rutledge was the youngest justice to depart the court, as he died while still a member of the court in 1949 at the age of 55. Justice William Moody was the youngest to retire after the beginning of the 20th century, at the age of 56 in 1910.

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Epic Systems v. Lewis, in which the court held on Monday that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable, continues to attract attention from court-watchers. Scott Bomboy reports on the decision for Constitution Daily. At the Cato Institute's Cato at Liberty blog, Walter Olson maintains that decision "was neither surprising nor novel as a legal matter," "[n]or - notwithstanding the variously breathless, furious, and apocalyptic reactions it has drawn from stage Left - is it objectionable as a matter of policy, or 'anti-worker.'" At The American Prospect, Simon Lazarus disagrees, asserting that "what stands out is that [Justice Neil] Gorsuch went out of his way to trivialize-evidently seeking to gut-the provisions of federal labor law that Justice Stephen Breyer had called, during the oral argument, 'the entire heart of the New Deal.'" Additional commentary comes from Ernie Haffner at his eponymous blog, the editorial board of The Wall Street Journal, and Garrett Epps at The Atlantic, who notes that the dissent "closed with a foretaste of the next battle in the majority's arbitration offensive: ... Title VII of the Civil Rights Act of 1964[, ] which covers sex discrimination on the job."

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The petition of the day is:

Issues: (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally-barred "challenge" to the EPA's cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act; (2) whether a landowner at a Superfund site is a "potentially responsible party" that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.

Richard Samp is chief counsel of the Washington Legal Foundation, which filed an amicus brief in support of the employers in Epic Systems Corp. v. Lewis.

The majority and dissenting opinions in Epic Systems Corp. v. Lewis adopted starkly competing visions of two federal statutes, both nearly a century old. The majority held that the Federal Arbitration Act's policy favoring enforcement of arbitration agreements trumps Section 7 of the National Labor Relations Act, which confers on employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." In contrast, Justice Ruth Bader Ginsburg's dissent argued that the rights conferred by Section 7 take precedence over the FAA and prohibit enforcement of agreements calling for one-on-one arbitration of employment disputes.

But a major flaw in Ginsburg's statutory analysis was her reliance on class-action rights created by Rule 23 of the Federal Rules of Civil Procedure, a rule not adopted in its modern form until many decades after passage of both the FAA and the NLRA. The linchpin of her dissent was her contention that filing wage-and-hour claims on a class or collective basis is among the employee "concerted activities" protected by Section 7 of the NLRA. That contention is not plausible, given that collective actions of that sort were unknown when the NLRA was adopted. This is not to say that the definition of protected "concerted activities" is incapable of expansion over time. But the adoption of federal procedural rules is not one of the permissible means of carrying out an expansion of substantive rights.

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On Monday morning Justice Elena Kagan joined Justice Ruth Bader Ginsburg's dissent from the Supreme Court's majority opinion in Epic Systems Corp. v. Lewis, which held that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable. On Monday evening Kagan spoke at the American Law Institute's 95th annual meeting with a fellow former solicitor general, Paul Clement - the attorney who argued for the winning side in that case.

As Justice Antonin Scalia - Kagan's former colleague and Clement's former boss - famously said to those who disagreed with the Supreme Court's decision in , " Get over it."

Kagan and Clement both spoke fondly of the former justice. "I loved my repartee with Justice Scalia," Kagan recalled. "He was sometimes aggressive but always totally straightforward and honest."

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Archis Parasharami is a partner and Dan Jones is an associate at Mayer Brown. Parasharami contributed to an amicus brief for the Chamber of Commerce in support of the employers in Epic Systems Corp. v. Lewis.

One year after the Supreme Court's decision in AT&T Mobility LLC v. Concepcion, the National Labor Relations Board advanced a novel interpretation of Section 7 of the National Labor Relations Act, which gives employees the right to organize, bargain collectively and "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The board held that Section 7 encompasses the right to bring a class or collective action. The board went on to say that an employment agreement that requires employees to resolve their disputes by arbitration on an individual basis is an unfair labor practice under Section 8 of the NLRA. The NLRB had never asserted that view before in the 77 years since the adoption of the NLRA. And the NLRB's general counsel stated as recently as 2010 that the NLRA has no impact on the validity of such arbitration agreements.

Yesterday, the Supreme Court, in an opinion by Justice Neil Gorsuch, rejected that approach to the interaction of federal labor and arbitration law. The court's decision in Epic Systems correctly holds that the Federal Arbitration Act precludes the NLRB's novel attempt to declare arbitration agreements requiring "one-on-one" arbitration unenforceable. Plaintiffs' class-action lawyers and other critics of employment and consumer arbitration will inevitably attack this decision, but it is both legally correct and right as a matter of policy - although the opinion itself was careful not to make policy judgments.

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Nicole G. Berner is general counsel and Claire Prestel is associate general counsel of the Service Employees International Union. SEIU joined an amicus brief in support of the employees in Epic Systems Corp. v. Lewis.
In recent years it has become increasingly common to hear chatter - even among progressives - that labor unions and worker organizing are obsolete relics of past glories.

Yet anti-worker corporate interests have never lost sight of the fact that workers can wield enormous power when they join together to protect workplace rights. The "Fight for $15 & a Union" campaign, supported by the Service Employees International Union, and the recent wave of teacher activism are only the most recent examples of what workers can accomplish when they act in concert. It is precisely to undermine this power that corporate interests and billionaire-funded extremists rush to pass "right to work" legislation wherever they can and why they have funded an extended battle in the courts to attack unions and divide workers.

The Supreme Court yesterday, in a 5-4 decision, gave another victory to these anti-worker extremists. Under yesterday's Epic Systems opinion, the Supreme Court majority gave employers the green light to force their employees, as a mandatory condition of employment, to forfeit their decades-old right to join together with co-workers in class or collective actions, or even with just a single co-worker, to pursue claims for stolen wages, sex, race, age, or other discrimination and other workplace claims.

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The Supreme Court decided two cases yesterday. In a major employment case that was argued on the first day of the term, Epic Systems v. Lewis, the court held 5-4 that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable. Amy Howe has this blog's opinion analysis, which first appeared at Howe on the Court. Subscript has a graphic explainer for the decision. For USA Today, Richard Wolf reports that "[m]illions of workers routinely sign such arbitration agreements unknowingly, only to find out later that they are barred from collective action." Additional coverage comes from Jess Bravin for The Wall Street Journal, Marcia Coyle and Tony Mauro at The National Law Journal (subscription or registration required), Adam Liptak for The New York Times, Ariane de Vogue at CNN, Robert Barnes for The Washington Post, Lawrence Hurley at Reuters, Kevin Daley at The Daily Caller, Andrew Hanna and Josh Gerstein at Politico, Lydia Wheeler at The Hill, Elizabeth Lowman at Jurist, David Savage for the Los Angeles Times, Dave Jamieson at HuffPost, Greg Stohr at Bloomberg, and Nina Totenberg at NPR, who reports that the dissent warned of "huge underenforcement of federal and state statutes designed to advance the well-being of workers." According to Joan Biskupic at CNN, the "forceful tone" of the dissent, parts of which Justice Ruth Bader Ginsburg read from the bench, suggests that "Ginsburg and the three other liberals may increasingly be in the minority as the court nears the end of its annual session in late June - and more likely to speak out."

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Ben Robbins is senior staff attorney for the New England Legal Foundation. He filed an amicus brief for NELF in support of the employers in the consolidated cases in Epic Systems Corp. v. Lewis.

Although the Supreme Court's decision today in Epic Systems Corp. v. Lewis was a close one (5-4), the result was not surprising, in light of the court's recent decisions establishing the primacy of the Federal Arbitration Act over other, potentially conflicting federal statutes. At issue was whether the FAA's mandate to enforce arbitration agreements according to their terms was displaced by Section 7 of the National Labor Relations Act, which grants employees "the right ... to engage in other concerted activities for ... mutual aid or protection." In particular, the employment agreements in these three consolidated cases all required the employees to arbitrate their work-related disputes on an individual basis only. So the question was whether the NLRA's protection of "other concerted activities" created a substantive right to pursue group legal action that invalidated the agreements, by displacing the FAA's mandate to enforce class and collective action waivers in arbitration agreements.

The majority answered no. The general residual phrase "other concerted activities" did not displace the FAA and did not guarantee employees the right to pursue group legal action against their employer in court or in arbitration. Instead, this phrase guaranteed employees the right to join together in the workplace to address working conditions among themselves and with their employer. Group legal action is simply not the "strength in numbers" that Congress had in mind when it enacted the NLRA to protect employees' freedom of association in the workplace. In essence, the court preserved the peaceful coexistence of two unrelated federal statutes that had remained undisturbed until only very recent times. While the FAA requires the enforcement of arbitration agreements according to their terms, the NLRA serves the different purpose of protecting employees' freedom of association in the workplace.

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The petition of the day is:

Issue: Whether 42 U.S.C. § 1395hh(a)(2) requires the Department of Health and Human Services to conduct notice-and-comment rulemaking before providing instructions to a Medicare Administrative Contractor that makes initial determinations of payments due under Medicare, when those instructions rest on a non-legally-binding administrative interpretation of a relevant statutory provision.

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SCOTUSblog - The Supreme Court of the United States blog

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It is that time of year again. As we near the end of the Supreme Court term, we are experiencing another round of prognostications on whether Justice Anthony Kennedy will retire, leaving another vacancy for President Donald Trump to fill. (Last year's take on the possibility of Kennedy's retirement can be found here .)

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Court Cases

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New DDA Project Final Report DDA eNews, December 2012

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