Roberts Rules

Roberts has gone out of his way not to rock the boat, to maintain the status quo and extricate the court from the larger political narrative.

July 23, 2020 • Commentary
This article appeared on Washington Examiner on July 23, 2020.

This is the year it really became the Roberts Court. Chief Justice John Roberts presided over Donald Trump’s impeachment trial, which seems like a lifetime ago, and managed a series of unprecedented telephonic oral arguments — during which we learned that the justices’ teleconferences are just like ours, with flushing toilets and participants forgetting to unmute. More important for understanding the Supreme Court, Roberts was in the majority more than any of his colleagues, including in all but one of the 5–4 decisions.

To put a finer point on it, Roberts was in the majority in 97% of the term’s cases, 58 of 60. The only other justice who participated in at least 50 cases in a term and was in the majority that much since Roberts joined the court in 2005 was Anthony Kennedy, who did it three times. Before Kennedy, the most recent justice to be in the majority that much was William Brennan in the 1968–69 term. The last chief justice to do it was Fred Vinson in 1949–50.

Now, Roberts isn’t a true “swing” vote, even though in this term, he went with the liberals in 5–4 rulings twice, more than any other conservative. Instead, Roberts is the court’s “driver,” steering the institution where he wants to go. Or the “anchor” justice, as SCOTUSblog’s Adam Feldman put it, because of his tendency to vote in the court’s majority.

Most notably, Roberts shocked many court‐​watchers by joining the liberals on three key cases decided at the end of June, involving gay and transgender rights ( Bostock v. Clayton County), immigration ( DHS v. Regents of the University of California), and abortion ( June Medical Services v. Russo). That plus Justice Neil Gorsuch’s writing the opinion in Bostock — it was a 6–3 vote — set off a circular firing squad on the Right, as so‐​called common‐​good constitutionalists went after originalists and textualists. That outrage was tamped down a bit this month when the court issued three key religious‐​liberty rulings, two of them by 7–2 margins and the other an emphatic rejection of any unequal treatment of religious schools in school‐​choice programs, written by the chief justice himself.

Moreover, when you look at the numbers, it was a pretty good term for conservatives. Of the thirteen 5–4 decisions, nine had the conservative justices together, and only three had a conservative defection. (The other was a quixotic copyright case with a heterodox alignment.) Compare that to the previous term, when there were eight 5–4 cases in which a conservative justice joined the liberals and only seven in which conservatives stuck together. Losses in high‐​profile cases sting, but this is by no means a liberal court, which is why progressives breathed sighs of relief but aren’t treating Roberts as the second coming of Anthony Kennedy, let alone David Souter.

Roberts has gone out of his way not to rock the boat, to maintain the status quo and extricate the court from the larger political narrative. He strives mightily to defy political, and especially partisan, expectations. The chief justice is acutely aware that it’s historically unusual to have all the court’s conservatives appointed by Republican presidents and all its liberals by Democrats, but that’s where we are, at a time of maximum polarization and toxic public discourse. Yet the court is embattled not because it’s partisan but because it cannot be divorced from the larger political scene. Ironically, as I wrote in these pages a year ago, it’s when justices think about extra‐​legal concerns, anything beyond just getting the law right, that they act most illegitimately.

Still, it’s precisely for such legitimacy concerns that Roberts made several important moves this term that frustrated those of us who want legal clarity, rather than to see the court muddle along. Back in April, he led the court to dismiss as moot New York State Rifle and Pistol Association v. City of New York, the first Second Amendment case the court had taken up in more than a decade. Justice Brett Kavanaugh concurred in the 6–3 decision not to decide but urged the court to “address that issue soon.” Alas, Roberts’s maneuvering apparently scared off either Justice Gorsuch or Justice Samuel Alito because six weeks later, the court lacked the four votes necessary to grant any of the pending Second Amendment petitions for review, over a dissent by Justices Kavanaugh and Clarence Thomas.

The same day as those denials, as well as denials in a slew of qualified immunity cases, with Thomas also dissenting there, the court decided Bostock, which found that Title VII of the Civil Rights Act of 1964 protected against employment discrimination based on sexual orientation and gender identity. This was, in Gorsuch’s own terms, a textualist decision, interpreting “based on sex” to include those categories, rather than progressive cant about the meaning of words changing over time or finding contrived legislative history that trumped statutory text. Kavanaugh had the better of the argument in dissent, explaining that Gorsuch was being too literal and that even in 2020, we wouldn’t say that someone fired for being gay lost his or her job “based on sex.” But regardless, Roberts wasn’t the deciding vote, instead sliding over to make the court look more united and achieve a result that would’ve been hugely popular had it been achieved through the legislative process.

Then, in DHS v. Regents, Roberts wrote an opinion saying that the Trump administration didn’t properly explain why it rescinded DACA, the Obama‐​era program that allowed people who were brought to the country illegally as children to stay and receive certain benefits. There are plenty of problems with this ruling, chief among them requiring the government to maintain a potentially unconstitutional program without examining whether President Barack Obama had the authority to create it in the first place. But Roberts again deferred to the political process. If Trump is reelected, he can try rescission again if Congress hasn’t fixed the problem, but otherwise, a popular policy remains in force.

June Medical was perhaps Roberts’s most strategic, and cynical, move. Here, he joined the liberals’ invalidation of a Louisiana abortion regulation, but only on stare decisis grounds — the idea that sometimes we preserve erroneous precedent because it would be more disruptive to get it right. Roberts maintained his disagreement with a four‐​year‐​old case involving a similar Texas law in which he himself dissented, but felt bound by that ruling. It was an unprincipled application of a doctrine that didn’t stop him from overturning precedent in Citizens United v. FEC (2010), Janus v. AFSCME (2018), and Knick v. Township of Scott (2019), cases in which the precedent was more entrenched. It also didn’t prevent his vote in Gonzales v. Carhart (2007), which upheld a federal ban on partial‐​birth abortion seven years after the court invalidated a similar Nebraska ban in Stenberg v. Carhart (2000).

Finally, we come to John Roberts’s finest hour, which also happened to be the term’s final hour. In Trump v. Vance, the court held that the president doesn’t have absolute immunity from state grand jury subpoenas seeking his financial records. In Trump v. Mazars, it held that Congress doesn’t have carte blanche to engage in a fishing expedition against the president. It was a split decision, but both cases ended up 7–2, with Roberts writing both majority opinions. The chief justice assembled strong coalitions for balancing state‐​federal relations and checking both the legislative and executive branches. Equally important to his own purposes, both cases will now continue in the lower courts, without a final resolution until after the election. Those “Trump tax” rulings hearkened to the end of the previous term, the first in the post‐​Kennedy era. The June 2019 term saw Roberts write the controlling opinions in decisions to (1) remove federal courts from policing partisan gerrymandering and (2) reject a question regarding citizenship for the 2020 census but allow the Commerce Department to try again in the future with a better rationale.

All of these rulings show that Chief Justice Roberts is acting politically, with a small “p.” He’s cognizant of the political atmosphere and is thinking about how to best position his beloved court. That’s nothing new: He’s always been a conservative, with a strong belief in the judiciary’s independence, but he’s also been cautious.

All that was evident 15 years ago, when George W. Bush named him to replace Sandra Day O’Connor. Roberts had an underwhelming interview with Vice President Dick Cheney and senior White House officials, playing his cards close and not admitting to any overarching legal theories. Speculation was rampant that others had the edge, with movement types pulling for Michael Luttig of the 4th Circuit, who was a clear and unabashed judicial conservative.

President Bush went with Roberts because of a gut instinct for what a justice was like. And then when Chief Justice William Rehnquist died, picking Roberts for chief avoided the sort of fight that would’ve attended the nomination of someone with a longer record of originalist jurisprudence, including the possible elevation of Justice Antonin Scalia, at a time when Bush was politically weakened by his Iraq policy and the government’s response to Hurricane Katrina.

Roberts put on a clinic at his hearing, emphasizing his dedication to precedent and restraint, and to a limited role for the judiciary. Judicial “modesty” became his watchword, likening the role of a judge to a baseball umpire, to ” call balls and strikes and not to pitch or bat.” And this wasn’t some “confirmation conversion”: Memos from his time in the Reagan White House showed that he was critical of the court’s intervention in too many cases. There was speculation about Roberts’s membership in the Federalist Society, the conservative/​libertarian legal network, but he disclaimed the association. That’s telling.

At 50 years old, Roberts became the youngest chief justice since his hero John Marshall. It didn’t take long for a man who had planned for this moment seemingly all his life to settle in. And it didn’t take long for him to make his mark. To the extent that Roberts’s project is to have the court speak more with one voice, his first term saw a marked increase in unanimous decisions: 45%, up from a five‐​year average of just over 25%.

The Roberts Court hasn’t hit that level of agreement every term — this past term, it was at only 36% — and some terms, a high rate of unanimity has been complemented by a relatively high rate of 5–4 decisions. But the statistics bear out the fact that, if you go below the culture war cases, this court is more united now than it has been since the days of FDR. Of course, those “big” cases matter, both for public confidence in the court and for the development of the law. The 2013–14 term, for example, saw a record two‐​thirds of the cases decided unanimously in the judgment, but many of those had strident concurrences that were dissents in all but name.

It’s readily apparent that the chief justice has a conservative judicial philosophy, but it’s a methodological conservatism of restraint and minimalism. “If it is not necessary to decide more to a case, then in my view, it is necessary not to decide more to a case,” Roberts explained in a speech toward the end of his first term. “Division should not be artificially suppressed, but the rule of law benefits from a broader agreement.”

Chief Justice Roberts practices what he preaches, writing fewer opinions than all of his colleagues. When he’s in dissent, someone else is typically writing that opinion, and he has never issued a solo dissent. In other words, the court will only go as far and as fast on any particular issue as the chief justice wants — and that’s typically not very far and not very fast.

Where he has supported “big” changes in the law, those have been preceded by small moves in that direction. Citizens United, which threw out the restriction on using corporate and union funds for independent political speech, was preceded by several campaign finance cases rejecting justifications for various other parts of the 2002 Bipartisan Campaign Reform Act. Shelby County v. Holder (2013), which invalidated the “coverage formula” for determining which jurisdictions had to “preclear” their electoral rules under Section 5 of the Voting Rights Act, was preceded by Northwest Austin Municipal Utility District No. 1 v. Holder (2010), in which Roberts raised concerns about Section 5’s continued constitutional viability.

Of course, Roberts is most famous (or infamous) for his role in upholding the Affordable Care Act, first against constitutional attack in NFIB v. Sebelius (2012) and then statutory attack in King v. Burwell (2015). In both cases, the chief justice attempted to show judicial restraint or even “modesty” by merely tweaking Congress’s work rather than invalidating it.

Unfortunately, he failed on his own terms. As the four NFIB dissenters wrote, “The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of healthcare regulation that Congress did not enact and the public does not expect.” The chief’s judicial passivism, combined with the activism of the four liberal justices, who saw no judicially enforceable limits on federal power, created a Frankenstein’s monster. Justifying a mandate with an accompanying penalty for noncompliance under the taxing power doesn’t rehabilitate the statute’s constitutional abuses. And by letting Obamacare survive in such a dubious manner, Roberts undermined the trust people have that courts are impartial arbiters rather than political actors.

The sad thing about that episode is that the chief didn’t have to do what he did to “save the Court.” For one thing, Obamacare was highly unpopular — particularly its individual mandate, which even a majority of Democrats thought was unconstitutional. For another, Roberts only damaged his own reputation by making this move after warnings from pundits and politicians that striking down the law would be “conservative judicial activism.” Had he sent Obamacare back to the drawing board, it would have been just the sort of thing for which the court needs all its accrued gravitas. Instead, we had a strategic decision dressed up in legal robes, judicially enacting a new law and feeding public cynicism.

With Justice Kennedy’s retirement, Roberts became the first chief justice to be the median vote in half a century and the first to be the deciding vote since Charles Evans Hughes in the 1930s. It’s a very different court than what we would’ve seen had Luttig been picked instead of Roberts in 2005, whether as chief justice or with Scalia elevated and Alito in Scalia’s place. While it’s possible that Roberts might be voting differently had he become an associate justice instead of the chief, he was never a Scalia or Thomas to begin with. Meanwhile, anyone can judge the success of his project to depoliticize the judiciary: tacking left and right while issuing narrow decisions does nothing to address an underlying dynamic that’s driven by irreconcilable interpretive theories — and only increases the perception that the judiciary is as political a branch as the others.

While Roberts now has even more incentive to indulge his minimalist fantasies and lead the court from the squishy commanding heights, he is a surer vote for conservatives, but maybe not libertarians, than Kennedy was. What that means in the long term only time will tell, though of course Roberts will stay in the middle of the court only if a Democratic president gets to replace Justices Ruth Bader Ginsburg and Stephen Breyer. If it’s President Trump making one or both of those nominations, we’ll all start talking about the Kavanaugh Court.

About the Author
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute