Nino sez: Segregation Will Solve the Problem!

When I started paying attention to Fisher v. University of Texas, back when the Court was considering granting cert for the first time in 2012, I was but a young 21-year-old, with light in my eyes and hope in my heart. Now, at a weary and jaded quarter-century, I cannot help but wonder if there will ever be a time when some court, somewhere, is not pondering Abigail Fisher's 2008 rejection from UT.

Now that Antonin Scalia has shown himself to be a supporter of segregation, maybe commentators will start delicately suggesting that he is no longer fit for service on the Supreme Court. “I’m just not impressed by the fact that…the University of Texas may have fewer [African American students]. Maybe it ought to have fewer.” Remember back in 2013 when Scalia said, without being asked, that he believes in the devil?

SCALIA: I even believe in the Devil.

INTERVIEWER: You do?

SCALIA: Of course! Yeah, he’s a real person.

Well, it’s now clear that Scalia’s right. The devil is a real person, and Scalia knows from personal experience.

And for today’s Supreme Court Edition of “Men Not Allowing Women to Speak”:

Scalia, the old white guy who believes in segregation, stopped the only woman of color on the Court, Justice Sotomayor, from asking Bert Rein (you guessed it: another white man!) a question and virtually scolded her for it. Rein then tried to stop the other female justice participating in the case, Justice Ruth Bader Ginsburg, from asking even a simple clarifying question. Soon after that, he did his best to speak over Justice Sotomayor when she had the audacity to, you know, do the job of a justice and ask questions.

In a successful effort to blow my mind, Justice Samuel Alito was the only justice to really raise the problem of standardized admissions tests (though I don’t trust his motives). Quoth Alito: “[T]here are many who think that SAT scores and ACT scores are culturally biased. […] Well, it’s rather strange that we construct the process that may disadvantage African-American and Hispanic students for an ostensibly race-neutral reason,” and soon adds that “the record showed that the students who have lower SAT scores but did better as a—by measure by high school rank did better at University of Texas; isn’t that—isn’t that the case?” In other words, SAT scores are not particularly predictive of academic achievement for admitted students. Solicitor General Donald Verrilli’s illuminating response: “I’m not sure what the answer to that is.” Yippee.

And ultimately, we are told we now need affirmative action for the sake of “corporate America” and the military. Martin Luther “The Greatest Purveyor of Violence in the World Today: My Own Government” King, Jr., would surely be proud! How far progressivism has come!

What will ultimately happen in Fisher? I dare not predict. I have come to believe in a nightmare scenario in which the Court hears then remands the case every few years. Decades from now, Abigail Fisher’s spirit will haunt the Supreme Court building, waiting for the day when she will finally get her $100 application fee back.

Standardized Admissions Tests: Affirmative Action's Lurking Issue

On Wednesday, the Supreme Court will hear oral arguments in Fisher v.University of Texas at Austin for the second time, reviewing the constitutionality of the school’s consideration of race in admissions. Although the question is not explicitly before the Court, the case provides the justices a chance to reconsider the constitutionality of race-conscious admissions more broadly.

In the three higher education affirmative action cases in the past 12 years—Gratz v. Bollinger (2003), Grutter v. Bollinger (2003), and Fisher I (2013)—some justices and advocates have called for an end to all race-conscious admissions programs, saying they violate the Fourteenth Amendment’s Equal Protection Clause. On the other side, affirmative action supporters argue that such programs are needed to ensure racial and ethnic diversity in colleges and universities. Each side employs its own arguments and evidence to support their views, but the largest unspoken issue in these cases has been colleges’ and universities’ use of standardized admissions tests. These tests, like the SAT, theACT, and the LSAT, result in significant differences in average scores between racial and ethnic groups and contribute to racial disparities in college admissions, whether race-conscious practices are used or not. In effect, these tests operate as a serious advantage for white applicants.

Average 2012-2013 SAT Scores (on scale of 800)
	Critical Reading	Math
White	527	534
African American	431	429
Mexican American	449	464

Source: National Center for Education Statistics. Note: Latino/Hispanic test-takers are disaggregated by nationality. “Mexican American” is the largest nationality among Latino test-takers and similar to scores for other nationalities.

These tests are supposed to be an objective measure of merit, but the source of the disparities is disputed. Some argue that the disparities result from test-takers environmental factors, like inadequate K12 education or socioeconomic class. Few today attempt a biological explanation, though historically, intelligence testing—the precursor to standardized admissions tests—was tied to a belief in eugenics and the biological superiority or inferiority of particular racial and ethnic groups. Still others argue that the tests contain a culturalbias, that the tests are designed from the point of view of middle- to upper-class white culture, and as a result, scores are tied closely to racial and socioeconomic status.

One could argue that even if there is a cultural bias in tests like the SAT, it only reflects the culture of academia and so identifies which applicants would be better suited for a particular school. That argument, however, fails to account for the ever-increasing diversity of the country and whether such an important institution as higher education, with the opportunities it bestows, should have to change to reflect that cultural diversity. Whatever reason one chooses to explain the racial and ethnic disparity in test scores, there is no disputing that the disparities result in fewer people of color, particularly African Americans and Latinos, being admitted to American colleges and universities.

While today justices on the Supreme Court rarely remark upon the test score disparities and the validity of the tests goes unquestioned, that was not always the case. In the two higher education affirmative action cases of the 1970s, DeFunis v. Odegaard (1974) and Regents of the University of California v.Bakke (1978), multiple justices raised these issues, both during oral arguments at the Court and in their opinions in the cases. The strongest views came from Justice William O. Douglas in his dissent in DeFunis. Because the plaintiff in DeFunis had since been admitted to the law school he was suing and was about to graduate at the time the Court heard the case, a majority of the Court ruled the case was moot and did not address the constitutionality of affirmative action. Justice Douglas, however, wrote a dissent in which he reached the merits of the case. In his opinion, he denounced the LSAT as culturally biased and called for its “abolition.” Citing his experience as a law professor, he also argued that a single multiple-choice test could never account for an applicant’s full abilities and stated that the “melting pot is not designed to homogenize people.”

In Bakke four years later, justices again directly addressed test score disparities and the validity of test use, though they disagreed about its relevance to the case. In these earlier cases, the widespread adoption of standardized admissions tests was a development of recent decades. In the early 1960s, for example, the University of California had originally rejected adoption of the SAT, determining it was unhelpful in predicting an applicant’s abilities. Having not been subject to the tests themselves, these justices may have been more likely to question their use and validity.

By contrast, in the affirmative action cases of the past 12 years, the justices have virtually ignored the racial and ethnic disparities in standardized admissions test scores. This change reflects the change in approach toward racial justice issues at the Court more generally. No justice in the 1970s set forth a “colorblind” view of the Constitution, and even the counsel arguing against the affirmative action program in DeFunis stated, “there are plenty of affirmative action programs that can be undertaken to get more minorities into the law schools, and we are in favor of that.” By the time the Court heard Fisher in 2012, four justices believed that Equal Protection Clause forbids any overt consideration of race by state actors, and a fifth justice is highly skeptical of such use of racial categories. Among those same justices, practices that are race-neutral on their face are permissible, even if they result in demonstrable and significant racial and ethnic disparities. In her 2010 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, author Michelle Alexander details how this view of “colorblindness” led the Court to condone serious racial disparities in criminal prosecutions and sentencing, as long as the government officials never openly considered race. The same logic would apply to standardized testing: as long as the tests do not directly acknowledge racial or ethnic differences, their score gaps are permissible.

Ironically, some schools have cited test score disparities as a reason for needing affirmative action, rather than reconsidering their use of the tests to help further the goals of affirmative action. In an amici curiae, or friend-of-the-court, brief filed in Fisher I, a group of “thirty-seven private, highly selective” colleges supporting race-conscious admissions acknowledged “the expensive likelihood that differential admission rates in SAT bands after such a decision [striking down affirmative action] would be attacked as prima facie evidence of unlawful discrimination, with colleges left to prove that they did not exclude on the basis of race.” In other words, these colleges argue that without the ability to consider race in admissions, they could be sued for knowingly using tests that result in differences in average test scores by race. Oddly, these schools, claiming to support the aims of diversity, do not suggest ending their requirement of standardized admission tests scores for applicants, even as they acknowledge that those scores produce a discriminatory result.

This reaches the crux of why standardized admissions tests have not been seriously challenged in affirmative action cases: white applicants suing a university over race-conscious admissions have little to gain by bringing up test disparities that advantage them, and the school that is being sued would not do well to acknowledge they are using a test with discriminatory results. The issue, then, is ignored and because affirmative action in higher education has thus far been upheld by the Court, the use of the tests remains undisturbed. One sitting justice, though, has raised the issue directly. Justice Clarence Thomas wrote in his 2003 dissent in Grutter, a case involving law school admissions, that “no modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test.” He went on to raise the seemingly obvious assertion that nothing requires a college or university to use standardized admissions tests and that this “intractable approach toward admissions is striking.”

Of course, Justice Thomas, the staunchest opponent of affirmative action on the Court, was making that point to argue against race-conscious admissions. But even affirmative action supporters could find common ground with his specific complaints regarding the LSAT, and other standardized tests. Even if colleges and universities were to stop using the tests, they would still have a need for race-conscious admissions, because racial disparities plague other areas of the admissions process as well. Yet, requiring standardized admissions tests scores is probably the most obvious and easily documented problem when it comes to ensuring equity in admissions. If the Supreme Court were to strike down, or severely narrow, race-conscious admissions, in Fisher II, standardized admissions tests will likely become an area of major contention for racial justice advocates. Minority enrollment would inevitably decrease as a result of such a ruling against affirmative action, and colleges and universities would have to justify their continued use of those tests, whether in their own efforts to maintain diverse student bodies, in response to outside pressure from activists, or in litigation that may follow.

When the Supreme Court again confronts race-conscious admissions in Fisher II this week, the racial disparities in standardized admissions test scores and the very validity of the tests will likely go unexamined by the justices and the advocates before the Court. But supporters of affirmative action and racial justice activists ought to raise awareness of this these faulty measures of “merit” and the inequity they produce in college admissions.

Narrow or Broad? More Obergefell Speculation

Taking John Roberts’s questions and comments from oral arguments in Obergefell v. Hodges at face value, he doesn't appear ready to strike down same-sex marriage bans. From his comments about the newness of same-sex marriage to his alleged concerns that “closing the debate can close minds,” he doesn’t want to move too quickly.

Still, he faces significant pressures. One is popular opinion and historical legacy: he doesn’t want to end up, as has been said endlessly, on the wrong side of history. Yet if his vote isn’t decisive—if same-sex marriage bans will fall regardless—he may not be as concerned about appearing to stand in the way of marriage equality.

Then there’s Anthony Kennedy issue. After all, is this the Roberts Court or the Kennedy Court? Maybe Roberts isn’t that petulant. But I am. If I were Roberts, I wouldn’t let Kennedy take all the glory for himself. Not being the decisive vote could cut the other way, as well. If the Court is going to rule for same-sex marriage with or without his vote, why not have some influence over the situation, namely, the ability to assign the majority opinion—presumably to himself.

How then could the Chief Justice rule in favor of the plaintiffs? Roberts doesn’t have the same kind of liberty fetish that Kennedy has exhibited. And there is about as much of a chance that Roberts would apply a heightened Equal Protection scrutiny to gay and lesbians as a class as there is that Antonin Scalia will come out of the closet. One of the few options left to Roberts came up in a question he posed during OA:

CHIEF JUSTICE ROBERTS: I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?

Kennedy briefly raised the point in 2013 during OA for Hollingsworth, and it has come up in various lower court cases. If Roberts is looking for a way to rule for the plaintiffs while relying on existing precedent (of heightened scrutiny for sex-based classifications) and not greatly expanding areas of the law, this could be his opportunity.

Still, if Kennedy were willing to write a broader opinion and the four liberal justices signed on to his opinion, rather than the Chief’s, it would take the majority away from Roberts. Given the choice, would all the liberal justices necessarily join a broader opinion?

Maybe not. I think that Justice Ruth Bader Ginsburg would join a narrower opinion for tactical reasons. Of course, there are always (my) petulant reasons of wanting to deprive Kennedy of his ill-bestowed hero status, particularly when RBG is the true gay icon. But petulance aside, Justice Ginsburg’s history of sex/gender discrimination litigation points to her desire for cautious movement in nascent areas of the law.

In Justice Brennan: Liberal Champion, authors Seth Stern and Stephen Wermiel write, based on interviews with RBG herself, that while she advocated strict scrutiny in even the earliest sex-discrimination cases she worked on, she was disappointed that Justice Brennan adopted that toughest standard so quickly. RBG had argued for strict scrutiny in the brief for the first successful sex-discrimination case, Reed v. Reed, in 1971. Though her client won, Chief Justice Burger, writing for a unanimous Court, applied rational basis review, the most lenient standard. In the 1973 case Frontiero v. Richardson, “Ginsburg wanted to follow her approach in Reed and advocate strict scrutiny.” The attorney arguing for the plaintiff, Joseph Levin of the Southern Poverty Law Center, “preferred emphasizing a less demanding standard,” so Ginsburg wrote an amicus brief advocating strict scrutiny, but urged the Court to adopt a less stringent standard if necessary.

Justice Brennan authored the leading opinion for the Court, writing that strict scrutiny should be applied to all sex-based classifications, but he only managed to get three other votes for this view. Four justices concurred on narrower grounds. Publicly, RBG expressed delight with the Brennan’s opinion. “Privately, though, Ginsburg was disappointed Brennan had adopted the very position she had advocated. Brennan surprised her. Ginsburg thought he should have settled for more incremental progress and waited for a broader victory down the road. The outcome, Ginsburg predicted, would only make her job more difficult.”

To be sure, the parallels are not exact. There have already been three Court opinions over almost two decades expanding gay rights, and arguably, Obergefell could be the “broader victory” in gay rights litigation. The common theme, though, is that RBG understands the politics of the law. Justice Ginsburg made clear in 2013 that she thought the Court shouldn’t rule too soon on same-sex marriage. She has expressed more recently that the time is here. But she would no doubt understand the significance of the conservative Chief Justice writing the majority opinion, even if it were a narrower ruling.

Even more, it would have to be tremendously gratifying for RBG if Roberts were to make such a ruling on a sex-discrimination basis, considering that she played such a central role in establishing precedent for heightened scrutiny on sex-based classifications. And sex/gender discrimination is closely tied to homophobia, both based on notions of what is acceptable behavior, and what are acceptable desires, for people of different genders. Let’s hear it from RBG herself:

I can’t say what Justices Breyer, Sotomayor, or Kagan would do. And ultimately, I’m not fully convinced that Roberts will rule for same-sex marriage even on a narrow basis. But if he does, RBG will reign triumphant, as always.

Liberty, with a Side of Equal Protection: Kennedy and Same-Sex Marriage

In 1976, a year after he joined the Supreme Court, Justice John Paul Stevens wrote in a gender discrimination case, Craig v.Boren, “There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases.”

"Only one Equal Protection Clause, you say..."

Though our dear Justice Stevens no longer serves on the Court, Justice Anthony Kennedy may well follow his words if Kennedy ends up writing the majority opinion striking down same-sex marriage bans in Obergefell v. Hodges. The Court will be hearing oral arguments in the case tomorrow, and observers and journalists (and bloggers!) will be paying close attention to anything Kennedy may say. At the same time, few close observers doubt that Kennedy will rule for the plaintiffs in these cases. The big questions will be whether the majority will include more than five justices (see these other posts on this blog) and what rationale the majority opinion will adopt in striking down same-sex marriage bans.

If the Court does divide 5-4, Kennedy will undoubtedly assign himself the majority opinion. What constitutional basis will Kennedy use to side with same-sex couples? Kennedy was maligned by some for his opinion in U.S. v. Windsor, the 2013 precursor to Obergefell which struck down the main section of the Defense of Marriage Act, for failing to articulate and apply a clear Equal Protection standard to DOMA. Unsurprisingly, Justice Scalia criticized Kennedy’s reasoning, calling it “an opinion with such scatter-shot rationales...federalism noises among them,” but even some liberal observers were disappointed or confused that Kennedy declined to adopt a clear level of scrutiny. Rather, Kennedy writes that DOMA “violates basic due process and equal protection principles,” without offering much more by way of explanation (other than the aforementioned “federalism noises”). Yet, as Justice Stevens pointed out in 1976, there is only one Equal Protection Clause, and nothing requires a majority to use the previously articulated standards in making a judgment. Kennedy may have been adhering to that concept to avoid getting to the more complicated question of scrutiny.

Looking back a decade before Windsor, Kennedy largely avoided the Equal Protection argument in his majority opinion in Lawrence v. Texas (2003), which struck down state sodomy bans. Instead, he ruled on the basis of substantive due process, stating that any private consensual sexual conduct between adults is protected from criminal sanction by the word "liberty" in the Fourteenth Amendment. To be sure, his opinion in Lawrence focused on the harm such statutes did to gay people, writing that the “State cannot demean their existence or control their destiny” by criminalizing their sexual conduct. Even in making this major liberal ruling, though, Kennedy seemed hesitant to abandon his conservative instincts, choosing simply to expand what is covered by “liberty” under the Due Process Clause, rather than expand Equal Protection to include an additional group.

What's he thinking? And should we care?

In Romer v. Evans (1996), the Court struck down a Colorado constitutional amendment which prohibited anti-discrimination laws or policies protecting gays, lesbians, or bisexuals at the state or local level. The amendment had passed in response to several localities passing such anti-discrimination laws. Writing for a six-member majority, Kennedy vaguely applies a rational basis test to the Colorado amendment and finds it unrelated to any legitimate governmental interest. But he does not clearly adopt the rational basis test; instead, he writes that even if the Court were to adopt this most lenient standard of review—rational basis review—the amendment would be struck down. As he would later do in Windsor, Kennedy is invoking the concept of Equal Protection in striking down the amendment, yet he does not make clear whether a higher level of Equal Protection does or should apply to classifications based on sexual orientation in general. This may point to a tension between Kennedy’s personal feelings toward gay people—whom he likely believes deserve equal treatment—and his judicial leanings—not to expand areas of the law too far, particularly when it comes to Equal Protection.

What does this mean for Obergefell? Both questions presented mention the Fourteenth Amendment generally, without specifying clauses, though most of the cert petitions invoked Equal Protection and/or Due Process. So the door is open to different possibilities. Having avoided adopting a clear Equal Protection standard for nearly 20 years, it seems unlikely Kennedy would do so now. Yet, it would be almost irresponsible to strike down state statutes or amendments on this major issue by merely invoking Equal Protection “principles.” Might Kennedy opt for Stevens’ “one Equal Protection Clause” idea? Perhaps. But Kennedy loves freedom. And liberty. Thanks to his love of freedom, we now have presidential campaigns that cost billions of dollars. And because “[l]iberty finds no refuge in a jurisprudence of doubt,” he voted not to overturn Roe v. Wade in 1992. Assuming he stakes out some kind of clear position in Obergefell, I suspect it will be under the guarantee of "liberty" in the Due Process Clause.

In Hollingsworth v. Perry (2013), the companion case to Windsor dealing with California’s Prop 8, Kennedy dissented from the majority’s ruling that the plaintiffs did not have standing to sue and argued that the Court should reach the merits of the case. In his dissent in Hollingsworth, Kennedy writes, “Freedom resides first in the people without need of a grant from government.” Though he was referring directly to the issue of standing, that line could just as well have been from his imagined majority opinion striking down same-sex marriage bans. If his past opinions, on both gay rights and other issues, are any indication, Kennedy will feel compelled to rule that the “liberty” of the Due Process Clause includes the freedom of two adults to marry, irrespective of their sexual orientation or gender. As a conservative, Kennedy will hesitate to recognize gays and lesbians as a new class under the Equal Protection Clause, yet he will be happy to righteously bestow liberty upon them through the Due Process Clause.

All of that being said, I personally hope that Chief Justice Roberts joins the majority and writes the majority opinion (or hands it off to Justice Ginsburg?), because as I’ve expressed on a different blog, Justice Kennedy is, um, not my favorite person in the world and I’m a little tired (okay, very tired) of him getting all the credit on gay rights. And if that happens, everything I wrote above will be largely irrelevant. We'll find out soon enough!

I'll use this image whenever I possibly can.

Same-Sex Marriage and the Constitution, According to John Roberts

John Glover Roberts

I’m still fairly convinced that Chief Justice Roberts will write the majority opinion in Obergefell v. Hodges. Whether that opinion will actually contain a wholesale endorsement of same-sex marriage throughout the United States, I am still debating, but here are some thoughts on the issue that have been swirling in my head.

The Supreme Court, when it granted cert, revised the Questions Presented to the following: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

When I first read this, the word require leaped out at me. I thought it was disturbing. Nowhere does it show up in the Petitioners’ original questions. It could be the Court's way of ruling in the middle and saying yes to Question #2 but not Question #1. I think the Court is more clever than that, however.

The new framing begs the question, Does the Constitution really require something that may not have even remotely crossed the Framers’ mind? (Since when? “At the time that the Equal Protection Clause was adopted,” if I may turn Justice Scalia’s own words against him.)

The Chief Justice provides some answer to this during oral arguments in Hollingsworth v. Perry, the Prop 8 case: “When the institution of marriage developed historically, people didn't get around and say let's have this institution, but let's keep out homosexuals. The institution developed to serve purposes that, by their nature, didn't include homosexual couples.”

The Chief Justice understands societal evolution and progress! Shocking. Unfortunately, he made this comment in the context of, “as [the institution of marriage] pursues additional interests, you don't have to include everybody [such as homosexuals] just because some other aspects of it can be applied to them.”

This recognition of the "evolving understanding of equality" and marriage, however, is important because what same-sex couples want, according to their briefs, is to be able to enter the long-established institution of marriage. It’s not about creating a new, separate right -- like what the Court was accused of doing with the issues of privacy and abortion during the time of Roe v. Wade. I expect Roberts to understand, even appreciate, this argument-- especially in the current state of same-sex marriage being legal in 36 states, an unprecedented development that he played a major hand in by denying to stay the petitions in October (His vote is not on the record, but it’s virtually undisputed).

Cunning.

Obergefell’s Questions Presented also shift the focus from states violating the Fourteenth Amendment into the Fourteenth Amendment requiring -- aka mandating -- states to license SSM. The 14th Amendment is part of the Federal Constitution, and Roberts believes that this is a federalism issue (something I wrote about here). The last time there was a high-profile case before the Supreme Court in which the Federal government required something from states and citizens  (individual health insurance), Roberts famously approached it with “full measure of deference” and allowed the government to prevail.

For same-sex marriage, it's similar. We know he cares about the position of the United States. The current framing of Obergefell already came out of his own mouth two years ago, in the same Hollingsworth oral arguments: “Is it the position of the United States that same-sex marriage is not required throughout the country?”

Of course, at the time, the government position was: “We are not -- we are not taking the position that it is required throughout the country.” Now, in their amicus brief supporting the petitioners in Obergefell, the government has categorically declared that same-sex marriage bans “cannot be reconciled with the fundamental constitutional guarantee of “equal protection of the laws.”

Will Roberts give the government the same “large measure of respect” as he did in the Obamacare case?

Why not? Look at this paragraph in his majority opinion: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” (Emphasis added). To me, this is classic Roberts giving himself a ticket to rule in favor of an issue that goes against his own beliefs or jurisprudence.

The Constitution permits same-sex marriage, but does it require its licensing across the United States?

Based on the Chief’s dissent in Windsor, and his subsequent vote not to hear the cases in October, it could very well be a Yes. In Windsor, he said: “Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.” With about 3/4 of states now licensing same-sex marriages, those interests in uniformity and stability now weigh in favor of same-sex marriage.

When it publicly agreed to hear the Obergefell cases in January 16, the Chief Justice and the Supreme Court effectively answered its own questions. Quietly revising the questions behind closed doors -- with its appeal of anonymity -- was very clever that way. When his majority opinion comes out in June, like what he did in Obamacare, John Glover Roberts just needs to paint himself as the neutral, objective umpire he’d always claimed to be.