September 29th is U.S. Supreme Court Chief Justice John Roberts’ 20th anniversary on the Court. But surely ‘The Roberts Court’ means more than just a chief justice. When it comes to abiding shifts in law toward originalism and analysis of the U.S. Constitution based on its text and history, one looks to all those forming this like-minded affiliation on the Court.
If we are to call it the Roberts Court, then it is also the Thomas Court. Over Justice Clarence Thomas’ nearly 34 years on the Court, he has shaped the legal debate and framework by which conservative judges look at issues. From Thomas, we have cases such as Bruen in 2024 reaffirming Second Amendment principles underlying the nation’s traditions. His powerful 2023 concurrence to Roberts’ majority in Students For Fair Admissions v. Harvard reminds us of the Constitution’s colorblind foundations under the Fourteenth Amendment. In concurring opinions in other areas, he has opened discussion to consider assumptions in the law taken for granted (or taken advantage of). And as a voice for good sense, Justice Thomas stands out. As he wrote this year concurring in Skrmetti v. United States, “[E]xperts and elites have been wrong before -- and they may prove to be wrong again.”
We should also call it the Alito Court. Justice Samuel Alito has shown judicial courage in adhering to positions not because they are ‘controversial’ but because of the realization that controversy alone should not conceal the judicial gavel. His 2022 opinion in Dobbs overturning Roe and Casey is both a meticulous history through our nation’s abortion laws and an exposition respecting the people’s decision-making ability. His 2018 opinion in Janus v. AFSCME strengthened certain First Amendment protections for public employees, and his writing for the Court in Mahmoud v. Taylor reanimated parents’ right(s) to direct their children’s religious upbringing.
And one must certainly include the contributions of past justices like Antonin Scalia and Anthony Kennedy for advancing conservative legal principles. With the late Justice Scalia, a sharp mind and wit not only brought more precision to the Court’s deliberations, but he also delivered the Court’s 2008 opinion in District of Columbia v. Heller which showcased originalism’s lasting application. And whatever the disagreements with Justice Kennedy when it came to a supposed federal right to abortion or other substantive due process issues, his vote in the majority in originalist outcomes and his opinion in 2010 in Citizens United v. FEC are foundational. Indeed, a short concurring opinion by Kennedy in 2018 shortly before his retirement sums it up: “It is forward thinking to read the First Amendment as ratified in 1791… Freedom of speech secures freedom of thought and belief.” This clarion call has since been taken up by justices Gorsuch, Kavanaugh, and Barrett.
While Chief Justice Roberts’ tenure may include an uneasy preoccupation with public optics (as could have been the case with the Affordable Care Act in NFIB v. Sebelius), his jurisprudence in areas like the First Amendment and executive branch power will hopefully be long lasting. His opinions for the Court in Trump v. United States on presidential immunity and separation of powers, Loper Bright Enterprises v. Raimondo on the limits of the administrative state, and Knick v. Township of Scott on lessening the burdens of filing constitutional takings cases all set straight a legal course that had long meandered.
For all the positive improvements in the law brought by the Roberts Court, it is imperative to know the ultimate (and practical) source of such success. Of course, individual justices use intellect, sound prose, and foresight in forming tangible doctrine. But all of it is academic without victories in the political branches. Republican presidents and Senate majorities both provide the votes necessary for such judicial nominations to be made and confirmed. Credit Reagan’s victories in 1980 and 1984, George H.W. Bush’s in 1988, George W. Bush’s in 2000 and 2004, and Donald Trump’s in 2016 for the conservative majority that has been sustained to date on the Court. If future political victories are taken for granted, then further principled legal decisions as those mentioned here will be imperiled.
Commend the voters for courageously standing up through this same period to vote and articulate their conservative opinions on the law and Supreme Court authority. For they often have gone against an antagonistic ‘mainstream’ in advancing their views. To those on the Right, their wise vantage point reflects a federal Constitution that often is compatible with a common sense reality. When it comes to the Constitution’s Framers, Chief Justice Roberts has attempted (quoting a 2015 dissent of his) “to give effect to the words they used.” May he continue to thoughtfully do so as this republic’s 17th Chief Justice.
Alan Loncar is an attorney in Macomb County, Michigan.
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