At yesterday’s marriage equality hearing, several of the Court’s conservatives took swipes at President Obama for refusing to defend the unconstitutional Defense of Marriage Act in court. Justice Scalia worried that “we’re living in this new world where the Attorney General can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.” Justice Kennedy compared Obama’s actions to President Bush’s infamous signing statements. Chief Justice Roberts, somewhat bizarrely, accused the President of lacking “the courage of his convictions” by saying DOMA is unconstitutional but continuing to enforce it.
But if Roberts and his fellow conservatives don’t like Obama’s decision, they have only one person to blame for laying the groundwork for it — Chief Justice Roberts.
In 1990, the Justice Department was tasked with defending a law protecting an affirmative action program governing broadcast licensing to minority-owned stations. Despite the fact that none of the traditional reasons why DOJ might refuse to defend a federal law were present in the case, then-acting Solicitor General Roberts refused to defend the law anyway. Instead, Roberts signed a brief arguing that the law was unconstitutional. Ultimately, the law Roberts refused to defend was upheld by the Supreme Court.
So when the Obama Administration refused to defend DOMA, it did nothing more than follow the “Roberts Rule” and travel the path laid by Chief Justice Roberts himself. If Roberts’ fellow conservative have a problem with this Roberts Rule, they should take it up with the Chief.