Welcome
The United States Law Week

Yes, Roberts Is In the Middle. No, He’s Not a Liberal

July 9, 2020, 4:28 PM

On the last Monday in June, Chief Justice John Roberts was a traitor. By Tuesday, he had found his way back into conservatives’ good graces.

The back-to-back rulings on abortion, when he sided with the liberals, and separation of powers, when he agreed with fellow conservatives, demonstrate Roberts’ pivotal role as the “swing justice” on the U.S. Supreme Court. It’s one that came into sharper focus this term when he landed in the majority 96% of the time and in all but one of the 5-4 or equivalent decisions.

Percent justices were in the majority across all cases this term
Illustration: Jonathan Hurtarte/Bloomberg Law

The only time he landed in the minority in those closely divided cases was on the last day of the term, when Justice Neil Gorsuch crossed over to join the court’s four Democratic-nominated justices in a big win for American Indian tribes in Oklahoma.

On the same day, though, the chief justice wrote both majority opinions in the high profile disputes over President Donald Trump’s financial records, cobbling together 7-2 majorities that handed the president both a loss and at least a temporary win.

Roberts’ often crucial role has pundits offering all sorts of theories about what he’s doing, whether it’s being a “Judicial minimalist” who doesn’t like sweeping decisions, planting seeds for future conservative gains, or deviating from conservative orthodoxy only when laws and regulations are at stake rather than in cases involving constitutional interpretation.

What’s clear is that there isn’t a new liberal impulse behind the sometimes unpredictable votes of a chief justice, who remains a solid conservative by any measure.

“Roberts is still one of the most conservative justices in the history of the Supreme Court,” said Duke law professor Neil Siegel.

He ranks near the top third of all the justices to have served on the court since 1937, according to the Martin-Quinn score of the ideological leanings of the justices.

The court’s legitimacy, though, requires that it doesn’t reflect the partisan divides in the other branches, Siegel said.

“The stabilizing faith in the Court is important for its public authority, and Roberts is the fulcrum for that now, and really for the past decade,” said UC Hastings law professor Rory Little.

Man on the Street

The chief justice of the United States is the head of the federal judicial branch, not just the Supreme Court, said Munger, Tolles’s Elaine Goldenberg. As such, he “must necessarily be concerned with the institution of the federal courts in general, and with the Supreme Court in particular.”

Most notably, in order for others to follow the court’s decisions, people must perceive it as a legitimate institution, said University of Minnesota political science and law professor Timothy Johnson. If the court is viewed as too political or too polarized—whether that’s true or not—"then people may not respect it and, in turn, may not listen to it.”

In public speeches, Roberts doesn’t explicitly talk about whether he approaches cases as chief justice with an eye toward the court as institution. He is, after all, famous for comparing the role of a judge to a baseball umpire calling balls and strikes and umpires aren’t supposed to think about how the crowd will view his calls.

Still, Roberts gave some insight into concerns about how the court’s rulings are perceived during oral arguments in a partisan gerrymandering case in 2017. Roberts lamented the court having to decide voting issues based on complex formulas he called “sociological gobbledygook.”

The “intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans,” Roberts said.

“And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country,” the chief justice added.

In a 5-4 ruling, the court ultimately refused to wade into partisan gerrymandering disputes. Roberts wrote the opinion, which broke along ideological lines.

Switching Sides

The 2019 term was unusually demanding for the court, and tested Roberts particularly.

There were notable politically-charged cases on immigration, abortion, gun rights, executive power, and gender equality. His judicial principles were openly questioned by Trump and other conservatives over his decision-making.

Roberts pulled double duty for weeks in early 2020 by hearing oral arguments in the morning and presiding over Trump’s impeachment trial in the afternoon. He also oversaw the transition to work-from-home court operations, the May oral arguments by phone, and the extended term all due to the coronavirus pandemic.

Although very much a conservative, his record in split decisions may say more about the importance of his role and where he’s taking the court that he’s led since 2005, including when he crossed over to join liberals.

His vote in a Louisiana abortion case perhaps demonstrates best how institutional concerns influence his voting.

In 2016, when the Supreme Court struck down a Texas admitting privileges requirement for abortion doctors, Roberts was in the dissent.

By the time the court considered a nearly identical law out of Louisiana, the court’s then-swing justice, Anthony Kennedy, had left the court. He was replaced by Justice Brett Kavanuagh, leaving anti-abortion advocates hopeful the court would come out differently this time around.

But Roberts switched sides.

He noted that he still disagreed with the court’s 2016 ruling.

“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” Roberts wrote. “Therefore Louisiana’s law cannot stand under our precedents.”

Roberts wouldn’t allow the court to flip for no other reason that a change in the court’s composition, Siegel said.

His switch is similar to an earlier one by his predecessor Chief Justice William Rehnquist, for whom Roberts clerked, Little noted.

Before joining the court, Rehnquist made no secret of his criticisms of Miranda v. Arizona, the landmark ruling requiring officers to provide certain warnings upon arrest.

Following the ruling, Congress attempted to undo it by passing a law that would have gutted the decision.

In Dickerson v. United States, Rehnquist voted to save Miranda, writing that the case, “being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.”

Again, institutional concerns and the power between Congress and the courts likely factored into Rehnquist’s decision, Little said.

Trump Subpoenas

Roberts’ institutionalist tendencies were on display in one of the most anticipated set of cases of the term: those involving Trump’s financial records.

He wrote both decisions, which involved 7-2 non-ideological majorities. Only Justices Clarence Thomas and Samuel Alito dissented.

The rulings weren’t an outright win for either side, going against Trump in the case involving a New York grand jury, but for the president in those involving Congress, at least temporarily. The rulings mean the president’s records are unlikely to be released to the public before the 2020 election.

“Institutionalist” sounds boring, Little said. But in assembling majorities in these highly consequential cases, sometime more than just 5-4, Roberts is “establishing himself, and the Court, as an important co-equal branch of government.”

And he does so while avoiding reaching a definitive conclusion on highly political issues, Goodwin’s Jaime Santos said. In the congressional subpoena cases, Roberts “gets to remand with some general guidance and virtually no hope of the decision actually impacting the election.”

Concealed Conservative Victories

The chief justice “picks his battles and will side with ‘the liberal justices’ when he can make narrow rulings,” as he did in 2012 to save the healthcare law known as Obamacare, Johnson said.

But often this term, Roberts sided with his more conservative colleagues.

Siegel pointed to a number including Hernandez v. Mesa, Seila Law v. CFPB, and Espinoza v. Montana Department of Revenue.

In Hernandez, the court ruled that the family of a Mexican teen killed by a U.S. border patrol agent couldn’t sue in the U.S. over the cross-border shooting.

In Seila Law, the court struck down the leadership structure of the Consumer Protection Financial Bureau, which was intended to avoid political pressure for the agency that was passed in the wake of the 2008 financial crisis.

And in Espinoza, the court reinstated a Montana scholarship program, saying the state could provide benefits to secular private schools while leaving out religious ones.

All three cases were 5-4 and all had Roberts in the middle.

But Santos said even some of the liberal “wins” were conservative victories, too.

She pointed to the Louisiana abortion case as a good example. In that one, the chief justice “staked out a position more in line with the conservatives” despite ultimately voting to uphold the law.

You can’t just look at the votes, Santos said. You also have to read the words they wrote.

Winning Strategy?

Goodwin’s William Jay said it’s hard to know if Roberts’ institutionalist strategy is paying off or not. “How do you measure something like that?”

Santos, though, noted that the public has more confidence in the court than the other two branches of government.

Part of being a success, though, “is getting the other justices to come along,” Little said.

Last term, despite being in the minority, the Democratic-nominated justices pulled out victories in 10 of the court’s 17 ideologically split decisions. That was largely fueled by every Republican-nominated justice crossing over to join the liberals at least once—including Alito who did so for the first time since joining the court in 2006.

This term, only Roberts and Gorsuch crossed ideological lines in these closely divided cases.

Many court watchers suspected that Kavanaugh “would join the Chief Justice as a second swing vote in play on many cases,” O’Melveny’s Jeff Fisher.

“But so far, that does not seem to be coming true,” Fisher said. “This may place all the more pressure on the Chief Justice and leave him rather isolated in many cases in coming years.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.