Votes Suggest Chief Justice Regains Control of ‘Roberts Court’

Chief Justice John Roberts was most often in the majority this term, dissenting in just two of the 58 argued cases that the US Supreme Court decided and leaving much of the writing to others.

But Roberts control over the 6-3 conservative court as its figurative head has been questioned in recent terms, particularly since the 5-1-3 decision in 2022 that overturned the constitutional right to abortion. Roberts was the only conservative to vote not to overturn the landmark precedent in Dobbs v. Jackson Women’s Health Organization.

Numbers don’t tell the whole story, legal experts say.

It isn’t clear if Roberts’ presence in the majority 96% of the time this term signals that his view is often likely to prevail, or whether his vote is shaped by a desire to be in the majority, said UC Davis law professor Aaron Tang.

“What the statistics maybe don’t show conclusively is which direction the causality runs for the Chief,” Tang said in an email.

Tipping Point

The simple explanation, Tang said, is that Roberts is the median-justice, “such that however he views a case is likely to wind up garnering a majority of the votes.”

The next two justices likely to be the tipping point are Kavanaugh and Justice Amy Coney Barrett. Brett Kavanaugh was in the majority 93% of the time this term, and Barrett 91%.

Because of that, the current court is often described as a 3-3-3 court, with Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch almost always on the conservative side, and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson on the liberal one.

Whether a ruling leans more conservative or liberal often comes down to those three, Tang said. “And of course the winning side virtually always will need two of those three.”

The court split 6-3 in 10 cases this term, including some of the most closely watched and consequential ones.

The liberal justices were in dissent in Trump v. CASA, undoing nationwide injunctions, Mahmoud v. Taylor, allowing religious parents to opt-out of LGBTQ-themed curriculum, and United States v. Skrmetti, allowing states to ban gender-affirming care for minors.

The three most conservative justices were in dissent in FCC v. Consumers’ Research, rejecting an aggressive use of a doctrine that limits the power of Congress to delegate work to administrative agencies, and Kennedy v. Braidwood Management, Inc., upholding a key provision of Obamacare that requires insurers to cover certain preventive health services at no cost.

Roberts, Kavanaugh, and Barrett were in the majority for all 10.

In Control

But Tang said there’s another possible explanation for why Roberts was in the majority so frequently this term—to give the impression that the justices aren’t as fractured as many think they are.

“The more complicated explanation is that the Chief’s desire to be in the majority (and to forge consensus where possible) actually sometimes shapes his votes rather than the other way around,” Tang said.

For support, Tang noted that Roberts didn’t write any separate concurring or dissenting opinions this term, preferring instead to let others speak for him.

Chicago-Kent College of Law professor Carolyn Shapiro said she wouldn’t go as far to say that Roberts is shifting his position to be in the majority.

But, she said there’s “no question in my mind that he wants to be in control.”

Shapiro noted that as the most senior justice in the majority, Roberts gets to decide who will write the majority opinion.

Although he often keeps the most high-profile cases for himself, this term Roberts assigned other justices to write significant opinions.

Barrett, the court’s second most junior justice, wrote the court’s blockbuster ruling in Trump v. CASA.

Her ruling, though broad itself, didn’t go as far as some of the other conservatives wanted, Shapiro said, referring to concurring opinions written by other justices.

Roberts may have assigned the opinion to Barrett to ensure that all the conservative justices could sign on to it and avoid a splintered ruling, Shapiro said.

Road Signs

Still, it isn’t clear that Roberts’ efforts are paying off.

The justices often tout that they are unanimous more often than they are divided. But that wasn’t the case this term.

Instead, the justices were unanimous in 43% of the argued cases they decided this term. The were significantly split in 33% of cases, dividing 6-3, 5-4, and even 4-4.

Several of the most significant of those split decisions came out with conservatives on top.

“Any court in which this chief is often the median justices is an awfully conservative court,” Shapiro said.

Moreover, she said there’s a lot that’s missed when only looking at stats.

A significant percent of the news out of the Supreme Court this term came off its emergency, or shadow, docket. And the emergency docket cases tell about where the road signs are pointing, Shapiro said, referring to where the court and the law might be headed in future terms.

Statistics are “just a snapshot, at best,” she said.