Roberts Rules

pa href=https://www.cato.org/people/ilya-shapiro hreflang=undIlya Shapiro/a/p div class=lead mb-3 spacer--nomargin--last-child text-default pThis is the year it really became the Roberts Court. Chief Justice John Roberts presided over Donald Trump’s impeachment trial, which seems like anbsp;lifetime ago, and managed anbsp;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./p /div , div class=mb-3 spacer--nomargin--last-child text-default pTo put anbsp;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 anbsp;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./p pNow, Roberts isn’t anbsp;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 a href=https://www.scotusblog.com/2020/07/final-stat-pack-for-october-term-2019/SCOTUSblog’s Adam Feldman put it/a, because of his tendency to vote in the court’s majority./p /div , aside class=aside--right aside--large aside pb-lg-0 pt-lg-2 div class=pullquote pullquote--default div class=pullquote__content h2 pRoberts 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. /p /div /div /aside , div class=mb-3 spacer--nomargin--last-child text-default pMost 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 ( emBostock v. Clayton County/em), immigration ( emDHS v. Regents of the University of California/em), and abortion ( emJune Medical Services v. Russo/em). That plus Justice Neil Gorsuch’s writing the opinion in emBostock /em— it was anbsp;6–3 vote — set off anbsp;circular firing squad on the Right, as a href=https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/so‐​called common‐​good constitutionalists/a went after originalists and textualists. That outrage was tamped down anbsp;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./p pMoreover, when you look at the numbers, it was anbsp;pretty good term for conservatives. Of the thirteen 5–4 decisions, nine had the conservative justices together, and only three had anbsp;conservative defection. (The other was anbsp;quixotic copyright case with anbsp;heterodox alignment.) Compare that to the previous term, when there were eight 5–4 cases in which anbsp;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 anbsp;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./p pRoberts 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 anbsp;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, a href=https://www.washingtonexaminer.com/opinion/how-the-supreme-court-undermines-its-own-legitimacyas Inbsp;wrote in these pages anbsp;year ago/a, it’s when justices think about extra‐​legal concerns, anything beyond just getting the law right, that they act most illegitimately./p pStill, 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 emNew York State Rifle and Pistol Association v. City of New York/em, the first Second Amendment case the court had taken up in more than anbsp;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 emany/em of the pending Second Amendment petitions for review, over anbsp;dissent by Justices Kavanaugh and Clarence Thomas./p pThe same day as those denials, as well as denials in anbsp;slew of qualified immunity cases, with Thomas also dissenting there, the court decided emBostock/em, 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, anbsp;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 anbsp;result that would’ve been a href=https://fivethirtyeight.com/features/the-supreme-courts-big-rulings-were-surprisingly-mainstream-this-year/hugely popular/a had it been achieved through the legislative process./p pThen, in emDHS v. Regents/em, 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 anbsp;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, anbsp;a href=https://fivethirtyeight.com/features/the-supreme-courts-big-rulings-were-surprisingly-mainstream-this-year/popular policy/a remains in force./p p emJune Medical/em was perhaps Roberts’s most strategic, and cynical, move. Here, he joined the liberals’ invalidation of anbsp;Louisiana abortion regulation, but only on emstare decisis /emgrounds — the idea that sometimes we preserve erroneous precedent because it would be more disruptive to get it right. Roberts maintained his disagreement with anbsp;four‐​year‐​old case involving anbsp;similar Texas law emin which he himself dissented/em, but felt bound by that ruling. It was an unprincipled application of anbsp;doctrine that didn’t stop him from overturning precedent in emCitizens United v. FEC /em(2010), emJanus v. AFSCME /em(2018), and emKnick v. Township of Scott /em(2019), cases in which the precedent was more entrenched. It also didn’t prevent his vote in emGonzales v. Carhart /em(2007), which upheld anbsp;federal ban on partial‐​birth abortion seven years after the court invalidated anbsp;similar Nebraska ban in emStenberg v. Carhart/em (2000)./p pFinally, we come to John Roberts’s finest hour, which also happened to be the term’s final hour. In emTrump v. Vance/em, the court held that the president doesn’t have absolute immunity from state grand jury subpoenas seeking his financial records. In emTrump v. Mazars/em, it held that Congress doesn’t have carte blanche to engage in anbsp;fishing expedition against the president. It was anbsp;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 anbsp;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 anbsp;question regarding citizenship for the 2020 census but allow the Commerce Department to try again in the future with anbsp;better rationale./p pAll of these rulings show that Chief Justice Roberts is acting politically, with anbsp;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 anbsp;conservative, with anbsp;strong belief in the judiciary’s independence, but he’s also been cautious./p pAll that was evident 15nbsp;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 anbsp;clear and unabashed judicial conservative./p pPresident Bush went with Roberts because of anbsp;gut instinct for what anbsp;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 anbsp;longer record of originalist jurisprudence, including the possible elevation of Justice Antonin Scalia, at anbsp;time when Bush was politically weakened by his Iraq policy and the government’s response to Hurricane Katrina./p pRoberts put on anbsp;clinic at his hearing, emphasizing his dedication to precedent and restraint, and to anbsp;limited role for the judiciary. Judicial “modesty” became his watchword, likening the role of anbsp;judge to anbsp;baseball umpire, to ” a href=https://www.cnn.com/2005/POLITICS/09/12/roberts.statement/call balls and strikes and not to pitch or bat/a.” 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./p pAt 50nbsp;years old, Roberts became the youngest chief justice since his hero John Marshall. It didn’t take long for anbsp;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 anbsp;a href=https://www.scotusblog.com/archives/EndofTermAnalysis.pdfmarked increase/a in unanimous decisions: 45%, up from anbsp;five‐​year average of just over 25%./p pThe Roberts Court hasn’t hit that level of agreement every term — a href=https://www.scotusblog.com/wp-content/uploads/2020/07/Final-Statpack-7.10.20.pdfthis past term/a, it was at only 36% — and some terms, anbsp;high rate of unanimity has been complemented by anbsp;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 anbsp;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./p pIt’s readily apparent that the chief justice has anbsp;conservative judicial philosophy, but it’s anbsp;methodological conservatism of restraint and minimalism. “If it is not necessary to decide more to anbsp;case, then in my view, it is necessary not to decide more to anbsp;case,” Roberts a href=https://www.nytimes.com/2006/05/22/washington/22justice.htmlexplained in anbsp;speech/a toward the end of his first term. “Division should not be artificially suppressed, but the rule of law benefits from anbsp;broader agreement.”/p pChief 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 emnever/em issued anbsp;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./p pWhere he has supported “big” changes in the law, those have been preceded by small moves in that direction. emCitizens United/em, 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. emShelby County v. Holder/em (2013), which invalidated the “coverage formula” for determining which jurisdictions had to “preclear” their electoral rules under Section 5nbsp;of the Voting Rights Act, was preceded by emNorthwest Austin Municipal Utility District No. 1nbsp;v. Holder/em (2010), in which Roberts raised concerns about Section 5’s continued constitutional viability./p pOf course, Roberts is most famous (or infamous) for his role in upholding the Affordable Care Act, first against constitutional attack in emNFIB v. Sebelius/em (2012) and then statutory attack in emKing v. Burwell/em (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./p pUnfortunately, he failed on his own terms. As the four emNFIB/em dissenters wrote, “The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to anbsp;vast judicial overreaching. It creates anbsp;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 anbsp;Frankenstein’s monster. Justifying anbsp;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 anbsp;dubious manner, Roberts undermined the trust people have that courts are impartial arbiters rather than political actors./p pThe 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 a href=https://news.gallup.com/poll/155300/gallup-editors-americans-views-healthcare-law.aspxeven anbsp;majority of Democrats/a 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 anbsp;strategic decision dressed up in legal robes, judicially enacting anbsp;new law and feeding public cynicism./p pWith Justice Kennedy’s retirement, Roberts became the first chief justice to be the median vote in half anbsp;century and the first to be the deciding vote since Charles Evans Hughes in the 1930s. It’s anbsp;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 anbsp;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 anbsp;branch as the others./p pWhile Roberts now has even more incentive to indulge his minimalist fantasies and lead the court from the squishy commanding heights, he is anbsp;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 anbsp;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. /p /div Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and author of a href=https://www.amazon.com/Supreme-Disorder-Judicial-Nominations-Politics/dp/1684510562/ target=_blankSupreme Disorder: Judicial Nominations and the Politics of America’s Highest Court/a, due out from Regnery in September.