Chief Justice John Roberts joined the Court in 2005, two years after Lawrence was decided, after only a short stint on the D.C. Circuit Court of Appeals. None of the gay-rights-related cases that have come before him as a judge give any significant clues as to how he might rule on the weighty constitutional issues he will face next term. Interestingly, as the Los Angeles Times reported in 2005, before he was on the bench he “worked behind the scenes for gay rights activists” in the Romer case who were represented at the time by his law firm, Hogan and Hartson.
But now, in these marquee gay-rights cases facing the Court next term—as American public opinion, especially among young people, shifts rapidly towards greater equality—Roberts may find the very kind of “legacy” issues around which he has shown a willingness to break with his more conservatives colleagues. Put another way, these cases will help define what freedom and equality look like in America, perhaps for decades. Will Roberts want to be on the losing side of history?
Olson, writing in Time about the health-care ruling, says the “decision abounds with legal and political ironies.” Although he goes on to discuss this incongruity in a different context, he has been hypothesizing for some time that the influences on Chief Justice Roberts in the health-care case might also lead him to rule in favor of the rights of gay Americans to full equality, including marriage. There is some reason to believe that Roberts would not want to be seen as leading a Court of right-wing judicial activists.
Fundamentally, we see that Roberts thinks of himself not just as another Justice of the Court but as its Chief Justice and, as such, as the primary keeper of its legacy. He is fifty-seven, and could serve on the Court for another twenty years or more. In the context of public opinion on gay rights and same-sex marriage, twenty years is a very long time.