Can the Judicial Branch be a Steward in a Polarized Democracy?

At the beginning of his first term as Chief Justice, John Roberts pledged to try to persuade his colleagues to consider the bipartisan legitimacy of the Court rather than their own ideological agendas. Roberts had mixed success during his first years on the bench, as the Court handed down a series of highprofile decisions by polarized, 5–4 votes. In the health care decision, however, Roberts did precisely what he said he would do, casting a tie-breaking vote to uphold the Affordable Care Act because he thought the bipartisan legitimacy of the Court required it. But the reaction to the health care decision – which Democrats approved and Republicans did not – suggests that Roberts's task of preserving the Court's bipartisan legitimacy is more complicated than he may have imagined, and that his success in the future will depend on the willingness of his colleagues to embrace his vision. Given the Court's declining approval ratings, an increase in partisan attacks on the Court, and a growing perception that the Court decides cases based on politics rather than law, the Chief Justice's vision of the Court as a bipartisan steward is more difficult – and also more urgently needed – than ever.