NRPLUS MEMBER ARTICLE C onservatives who care about judicial issues — and this should be all conservatives — have long held one cardinal belief about the Supreme Court: John Roberts is “politically unreliable.” Perhaps he was not as much a weather vane as Anthony Kennedy, a similarly doctrinally hazy justice who grew to relish his swing-vote role. But when the chips were down, one of them (and sometimes both!) could be counted on to fail you.
It’s not true, really, at least not in that simplistic way, and obviously untrue now that the Court’s most recent term has concluded with Chief Justice John Roberts voting in the majority on three crucial cases and writing coruscating majority opinions in two of them. Which of course is the danger of interpreting the Supreme Court and its justices’ personal judicial temperaments through a vulgarly political (in the partisan, rather than the institutionalist, sense) lens.
Therefore, I shall attempt to interpret John Roberts through a non-vulgarly political lens. This is, of course, that most dubious of things: a subtextual analysis of judicial decision-making. It’s a dangerously speculative path, and yet Roberts invites it with a history of decisions that curiously oscillate between incisively conservative jurisprudence and, as all legal scholars have noticed, a temporizing institutionalist streak.
My argument is that he is easily understood: Even with the most recent term’s decisions, he remains the same core institutionalist he always was, concerned about both the legitimacy and the independence of the third branch of government (the judiciary) in an era when the first branch (the legislative) is rapidly conceding its power to the second (the executive). I predict that, from here on, he will also be more firmly tethered to the right-leaning majority of the Court than many realize, if only because the left wing of the Court seems to have given up on his institutionalist cause entirely.
For many conservatives, Chief Justice Roberts’s reputation died the moment he handed down the majority opinion in NFIB v. Sebelius (2012), siding, in a surprise 5–4 ruling, with the Court’s liberal wing in upholding the Affordable Care Act. In 2015 he seemingly shoveled even more dirt onto his intellectual grave by again joining and writing for a liberal majority in King v. Burwell, upholding the health-care exchange system at the core of the Obamacare bill. “Another Souter brought to us by another Bush,” conservatives lamented, as history seemed to rhyme.
It’s a good deal more complex than that, because Roberts’s origin story in this regard actually begins long before he became a Supreme Court justice. It starts with Bush v. Gore in 2000, the infamous election case about Florida’s partial vote counting that, though it may have been settled 6–3 on its merits, is forever written down in popular memory as a partisan decision because it was 5–4 on the remedy: namely, stopping the vote count and declaring George W. Bush the winner of the 2000 presidential election in Florida.
Set aside 20-plus years of retrospective argument about the merits and consider that John Roberts had a front-row seat to it all as an adviser to then-governor Jeb Bush on the case. He had to have noticed the extreme damage it caused to the institutional legitimacy of the Supreme Court, and how, particularly among legal scholars who write the narratives, it had already solidified into the example par excellence of the Court’s judicial overreach. (Set aside, too, the manifest hypocrisy of this verdict’s being delivered by liberal constitutional scholars who also defended the likes of Roe v. Wade; that is both howlingly obvious and not the point here.)
He also had to have known how seriously the Supreme Court itself took the fallout from the case. Notice that there were no judicial retirements on the conservative side of the bench during Bush’s first term; Justice Sandra Day O’Connor chose to step down in early 2005 only after Bush was reelected, giving him a chance to place Roberts on the court. (William Rehnquist’s death months later allowed Bush to switch Roberts’s nomination from associate to chief justice.)
After being seated on the Court, Roberts impressed initially as both a consensus builder on the conservative wing and as a judge in his own right. In Parents Involved v. Seattle (2007), he wrote for the majority with language that would take on even greater meaning in the present day: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” He joined the 5–4 majorities in D.C. v. Heller (2008) and McDonald v. City of Chicago (2010), the two cases that fully and finally incorporated the Second Amendment’s individual right to keep and bear arms to the states.
Which is why, for conservatives, the all-important “Obamacare” case, NFIB v. Sebelius, landed like a punch in the solar plexus. It wasn’t just the adverse ruling that stuck so bitterly in our craws, it was the politics; it was immediately obvious that something deeply hinky had gone on during the deliberations. To recall, the conservative argument was that the “individual mandate” of the Affordable Care Act was unconstitutional because the commerce clause grants the federal government the ability only to regulate commerce “among the states,” not to command all citizens to engage in commerce outright by buying a product (health insurance) they may not want. The liberal argument, on the other hand, boiled down to “Ha! Wickard v. Filburn means Congress can do whatever it wants.” Signs clearly indicated during oral arguments that all the conservatives, Roberts included, were on board with striking it down.
And then came Roberts’s opinion, which, despite being a nominally 5–4 “majority,” was really a bizarre opinion of one: He infamously agreed with the conservative wing that the ACA was a violation of the commerce clause . . . but then rescued the legislation by simply declaring it instead to be a tax — even though it had never been described, sold, or passed as one — and thus legal under Congress’s taxation power. Even the liberals, the members of his own majority, threw their hands up and wrote a concurrence saying, in effect, “Well, that’s complete nonsense doctrinally but whatever gets him through the night, we’ll bank the win and go home.”
To add insult to injury, Roberts’s sudden change of heart was almost instantly revealed to be political (or, if you’re being kind, “prudential”): He changed his vote at the last second not on the merits but rather because, with the ghosts of Bush v. Gore in his head and echoes of Barack Obama’s public threats against the legitimacy of the Court in his ears, he buckled and invented a face-saving rationale for it. In the later King v. Burwell decision, when Roberts upheld the federal exchanges (and thus the core functionality of the ACA law) by interpreting what conservatives argued to be legislative intent as a mere drafting error, it appeared to be similarly political.
This is not intended as an apologia. Both decisions were terribly reasoned. But both of them reveal, in their tortured reasoning, a deeper underlying logic to Roberts’s approach: conservative, but one whose conservatism is Burkean in the sense that he was, first and foremost, a “don’t rock the boat” institutionalist. Obama sacrificed his entire Democratic caucus in the House and much of it in the Senate in 2010 to get the ACA across the finish line. One way or another, the issue had been furiously litigated in public, with massive political consequences at the ballot box. Roberts decided that he didn’t want the Supreme Court to be responsible for a decision the people would have a chance to vote on anyway in 2012, before it went into effect. (Alas: Mitt Romney.) His later decision in Burwell, seen in that light, is merely an extension of the same institutionalist principle: Having upheld the legislation, he was not now simply going to gut it entirely on a technicality, no matter how infuriatingly correct the point of order might be.
Many of Roberts’s later votes and opinions have been subsequently dismissed by conservatives to ill effect, because to do so is to fail to understand just how committed he was to this ideal of institutional neutrality in what he considered to be essentially political decisions. (This, one suspects, is what he really meant during his confirmation hearings when he described the judge’s role as that of an umpire “calling balls and strikes.”) Few remember Roberts’s fierce dissent in Obergefell v. Hodges, which legalized same-sex marriage. His objection was based not on his opinion of gay marriage at all but rather on an originalist reading of the Constitution and the 14th Amendment and (less remarked upon) an explicit recognition that to foreclose on the debate judicially is simply to use the Court to declare moral victory in an ongoing culture war.
Even more tellingly, his contrasting opinions about Deferred Action for Childhood Arrivals (DACA), the Obama-era amnesty program for illegals brought into the country as minors by parents who entered illegally, explain so much about the Roberts approach. In 2016’s U.S. v. Texas, a case argued while Antonin Scalia was alive but decided after he died (and his vote was thus null), Roberts joined the conservative wing to create a 4–4 deadlock that had the legal effect of keeping the order from becoming law. In the midst of a Court crisis — liberals plainly have not forgotten how Mitch McConnell sent Merrick Garland’s nomination straight into a trash can — Roberts moved for stability to counter a sudden majority-altering death. But in 2020, in DHS v. Regents of the University of California, he flipped and joined the liberals in a 5–4 vote to knock down Trump’s attempt to repeal it via executive order. It was not because he thought the Trump administration lacked the ability to repeal a prior administration’s executive order. It was because Trump — in a forehead-slappingly predictable move — didn’t bother to follow even the barest outlines of the Administrative Procedures Act (which governs) and instead, in Trump fashion, had Attorney General Jeff Sessions issue a diktat.
The through line connecting all of these decisions is a judicial humility before the constitutionally enumerated prerogatives of both the legislative and executive branches, so long as they play by the broader rules. Obamacare had been decided by an elected Congress, and paid for dearly by the same one. Gay marriage was a matter best left to the states, rather than made federal law by national fiat on moral but constitutionally dubious grounds. DACA was an illegal executive overreach, but it cannot be undone by an executive overreach that is equally illegal, just in different ways.
This logic drives judicial conservatives insane, and with good reason: Of what bearing should any of these considerations be for a truly independent judiciary? The law is the law. Either interpret it according to your principles, without reference to the prevailing political winds of the moment, or abdicate your responsibility as a lifetime-appointed judge. But the approach has its own internal — and dispositionally, if not politically, conservative — logic regardless.
Which is why of all of Roberts’s split-the-baby decisions, his concurrence in Dobbs rings hollowest. Roberts nominally joined the 6–3 majority ruling, but it was really only a narrow 5–4 majority in spirit; his concurrence would have left the essential Roe framework intact while simply narrowing it even further. Ironically it is here and not in Sebelius that he most clearly broke with his institutionalist/small-d democratic instincts, for only by repealing Roe wholesale and returning the matter to the states could the issue finally be properly legislated, whatever political catastrophes may come. (Republicans have gotten pasted in recent swing-state elections for a failure to plan for a post-Roe future — simply their due for not grasping what returning abortion to mass politics actually meant.)
Has there been a shift in Roberts’s jurisprudence post-Dobbs? That is one prevailing theory — Michael Brendan Dougherty intriguingly speculated as much here. I believe that there has not been one; what has changed is that the contradictions inherent in Roberts’s approach have been heightened by the recent behavior of the liberal wing of the Supreme Court and by the activist push by progressives in the media and within the Democratic Party to delegitimize the Court. The starkness (perhaps the anachronism) of his position stands out all the more now that the Left has wholly embraced the argument that the Supreme Court cannot be legitimate if it does not rule in the Left’s favor.
Importantly, Roberts retains an ability to influence the conservative wing of the Court sheerly through his position as chief justice. (As such, he may assign controversial opinions to himself if he joins the majority.) But one other thing that deserves emphasis — Charlie Cooke has written eloquently on this already — is how intellectually outgunned the Court’s liberal wing is relative to the conservative side. It’s not merely a matter of numbers so much as a stark matter of judicial ability and temperament. Elena Kagan is a genuinely brilliant liberal justice with the ability to persuade those in the conservative majority as to the soundness of her views, but she has of late seemingly been phoning it in. Meanwhile Sonia Sotomayor is (to put it generously) notoriously lacking in the “intellectual outreach” department, and Ketanji Brown Jackson, though she may develop on the bench, is at this early date depressingly outmatched rhetorically and argumentatively even by Sotomayor.
By contrast, John Roberts has used his perch as chief justice with consummate skill not only to take hold of decisions where he joins the majority so that he can draft the opinion but to get the other five conservatives to sign on. (His notable failure in that respect, as already discussed above, was with Dobbs; he wrote a concurrence because the other five justices refused to sign on to what otherwise would have been his majority opinion.) The results in Students for Fair Admissions, 303 Creative, and Nebraska v. Biden were thumping 6–3 majorities, with Roberts writing the student-loan and affirmative-action cases and handing 303 Creative over to Neil Gorsuch for the honor of dunking on his home state. Roberts’s majority opinion in Students for Fair Admissions (the racial-discrimination cases) was the capstone on a consistent legal view traceable all the way back to Parents Involved v. Seattle in 2007: forcefully rejecting the idea that federally endorsed racial preferences have any constitutional place in the American settlement. (The majority opinion kicks the door wide open for future legislation outside the bounds of mere college admissions.)
The coalition-building in the student-loan cases alone was remarkable, and the result reaffirms Roberts’s core role as a conservative institutionalist. It’s worth pointing out that of the two student-loan cases, the first addressed by the court was rejected in a 9–0 unanimous decision written by Samuel Alito, of all people, on the grounds that the plaintiffs lacked proper standing. And this is key. The standing issues in the student-loan case were always known to be vexed because, without getting into too much detail, the doctrine of standing — “who can properly bring a claim before the Court?” — is a joke, definable only in its broader outlines and remarkably susceptible to judicial manipulation in its more particular application.
But once again, Roberts found a way to split the baby, and this time in a way that both upheld some of the few remaining rickety splinters of the preexisting doctrine (in tossing out the one case) but also — far more importantly — upheld our basic structure of government and prevented the Biden administration from getting away with executive czarism. Once freed to reach the merits, Roberts pulled no punches in his opinion, writing that, contra Biden’s attempt to reinterpret a post-9/11 law for emergency responders into a nationwide student-loan-forgiveness plan, “the statutory words ‘waive or modify’ do not mean ‘completely rewrite.’” Further, “our precedent — old and new — requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy.” The through line in his thought remains clear: Don’t rock the boat, but more especially, don’t find excuses to ignore the fact that one party is attempting to gouge gigantic gushing holes in its constitutional hull for temporary political advantage. That’s how you read John Roberts.
What fascinates the most about the Roberts Court is that its legacy is nowhere near fully being written yet. So much is contingent; so much depends on the wild oscillations currently running through our legislative and executive branches, on our national politics, even on actuarial probability. (One reason it matters greatly for Republicans to win the next election with a Senate majority: Clarence Thomas would likely prefer not to have to die wearing his robes while a senescent 83-year-old Joe Biden is still president.)
But expect Roberts to continue carrying this torch until the day he retires or passes away. He’s invested far too much of his time and sense of dignity and self-worth into the mission of keeping the Supreme Court as a bulwark of fundamental constitutional tripartite balance to abandon it now. His most notorious deviations from conservative orthodoxy have been either to uphold the power of the legislative branch in an edge case (Sebelius and Burwell) or to slap down executive-branch power grabs (both the Obama and the Trump-era DACA cases). His eye is on the scales, ever more so now that the executive branch is becoming more and more ambitious, and Congress’s legislative will is atrophying.
Roberts’s brand of judicial conservatism is orthogonal to the way modern hotheads usually regard the term, in a way that neither rank partisan nor strict logician will ever be comfortable with. It means to be conservative in the way one treats our balanced structure of government — the delicate interplay of a system that might not necessarily be as robust as we all like to think it is — and not just the issues of the moment. It means he has gotten it wrong in ways that are impossible to defend, as in Sebelius and Dobbs.
But it is impossible, as a Burkean myself, not to sympathize with Roberts’s lonely quest. To reject Roberts’s underlying institutional logic is to reject the idea that the judicial branch exists as something independent of the whims of executive and legislative ones or even of the baying crowds in their more egregious moments — and even worse, to do so as avowed conservatives. I, for one, do not reject that idea.
Yet. The sharpest critique of Roberts’s institutionalism has always been that it is hopeless in our acceleratingly polarized era: The politicization of the Supreme Court by the Left in a world of pure power-calculation was a foregone conclusion, so why bother to play the respectability game when the left-wing legal hacks of the world are already talking about adding four more justices to the Court and abolishing the Senate via the back door? I think the question answers itself: At a time when the most likely outcome of the next presidential election is a Democratic president and a Democratic Congress hungry to cut down every law in the land, Roberts understands the importance of giving the Devil the benefit of law, if only so that the Devil cannot turn ’round on you.