Supreme Court

John Roberts Just Annoyed Everybody. Is He the New Anthony Kennedy?

The chief justice has managed to infuriate every major political faction.


When Anthony Kennedy retired from the U.S. Supreme Court in 2018, he enjoyed the unique distinction of having been denounced by every major political faction in the country. For conservatives, Kennedy was the activist judge who "invented" a right to gay marriage. For progressives, he was the corporate shill who authored Citizens United. For libertarians, he was guilty of both enabling eminent domain abuse and squashing the rights of local medical marijuana users in favor of a national drug control scheme. At one point or another, it seemed like everybody had cause to hate on Anthony Kennedy.

John Roberts is the new Anthony Kennedy. As the Supreme Court's 2019-2020 term came to its dramatic close this week, the chief justice not only solidified his role as a swing vote in highly charged cases, but also managed to annoy practically everybody along the way.

Will the religious right ever forgive Roberts for siding with the Court's Democratic appointees to strike down an anti-abortion law? In Whole Woman's Health v. Hellerstedt (2016), the chief justice dissented when the Court overturned a Texas statute that required abortion providers to have admitting privileges at local hospitals. But in this term's June Medical Services v. Russo, Roberts did the opposite, concurring in a decision that voided a nearly identical abortion regulation from Louisiana.

"I joined the dissent in Whole Woman's Health and continue to believe that the case was wrongly decided," Roberts wrote in a lone concurrence. However, "stare decisis requires us, absent special circumstances, to treat like cases alike," he continued. "The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana's law cannot stand under our precedents."

Plenty of progressives praised Roberts for that. But their cheers quickly turned to jeers when the chief justice delivered a huge victory just one day later for both school choice and religious liberty advocates in Espinoza v. Montana Department of Revenue. "A State need not subsidize private education," Roberts wrote. "But once a State decides to do so, it cannot disqualify some private schools solely because they are religious." The Court has "long recognized the rights of parents to direct 'the religious upbringing' of their children," he observed. "Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution."

And then there was Seila Law v. Consumer Financial Protection Bureau, in which the chief justice led the Court in declaring the single-director structure of the Elizabeth Warren-invented Consumer Financial Protection Bureau (CFPB) to be unconstitutional. "The CFPB Director has no boss, peers, or voters to report to," Roberts wrote. "Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U. S. economy. The question before us is whether this arrangement violates the Constitution's separation of powers." Roberts held that it did. Not exactly a happy outcome for supporters of the so-called administrative state.

Libertarians, of course, were criticizing Roberts before it was cool. In National Federation of Independent Business v. Sebelius (2012), Roberts characterized his vote to uphold Obamacare as an act of conservative judicial restraint, invoking the early 20th century jurist Oliver Wendell Holmes Jr., who once declared, "if my fellow citizens want to go to Hell I will help them. It's my job." Here's how Roberts put it: "It is not our job to protect the people from the consequences of their political choices." To say the least, that deferential approach is the antithesis of the libertarian legal movement's vision of the proper role of the courts in our constitutional system.

To be sure, Roberts is not the only swing vote on the Supreme Court these days. Justice Neil Gorsuch actually had a record that was more "liberal" than Justice Kennedy's when the two sat on the Court together in 2017-2018. In this term's Bostock v. Clayton County, Georgia, Gorsuch led the Court in extending federal anti-discrimination protections to gay and transgender employees. That ruling was widely celebrated as a liberal victory, though Gorsuch did base his reasoning on the textualist principles championed by the late Antonin Scalia, a conservative legal icon.

Still, it was Roberts who was truly at the center of the SCOTUS storm, having cast key votes on some of the most contentious issues in modern American life, from COVID-19 lockdowns to the subpoenaing of President Donald Trump's financial records.

Like it or not, it's the Roberts Court now.

NEXT: Oklahoma Can't Break Congress's Promise That Native American Reservation Would Be 'Secure Forever,' Rules Supreme Court

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  1. >>solidified his role as a swing vote

    Chief Justice Narcissus.

    1. Roberts has certainly betrayed the cons over and over.

  2. Perhaps Roberts just sees the constitution as his personal playground.

    1. If Roberts wants to run roughshod on the Constitution, he should run for Congress.

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    2. Or maybe he see his job to uphold the Constitution? He is therefore forgoing trying to make one group or another happy.

      1. You’re not going to get many on any side agreeing with that stupidity

      2. upholding the constitution and being a mushy moderate are not the same thing

        1. Nine justices are assigned the job of upholding and interpreting the Constitution. You may not agree with their decisions, but it is theirs to decide. As Justice Roberts is usually in the majority it appears his is the correct interpretation most of the time.

          1. lol even as parody that’s just terrible.

          2. Did you notice that the four liberals always vote ‘en bloc’? It proves that the women are always right, er, left.

            1. DId you notice that Justice Elena Kagan voted with the majority on the employment of religious instructors? I think that make your assertion incorrect.

          3. He regularly shits on the constitution. I understand your confusion here. In your mind, the constitution supports progressive power. In reality, it is nearly always reflects the opposite o father progressive agenda.

  3. He’s an establishmentarian. He favors the status quo. Which is why he loves stare decisis so much.

    Plus he’s a “conservative” in the sense that John is a conservative – the role of the state should be to promote stability and order. If that means that a few injustices go unpunished, well, too bad.

    1. Whereas you favor donuts and lying right fatty?

      1. Lol. It’s funny because he admitted he’s fat.

      2. So he’s not just an enthusiast of pedophilia, but also a fat fuck?

  4. No, not unless he could invoke some actual heartfelt principles, no matter how insincerely.

    Roberts wants to upset nobody. Why he became a judge with that attitude, I have no idea. He must be a lawyer, or have been, and you’d think that would have been a bad choice to.

  5. At one point or another, it seemed like everybody had cause to hate on Anthony Kennedy.

    Well, he had to live up to the name.

  6. He’s the new Earl Warren. He may end up uniting the Birchers , Bernie Bros, Boogaloo boys and BLM.

    1. Don’t forget the Baptists and Birkenstock crowd.

      1. Plus your dream match up, NAMBLA and La Raza.

  7. I think this was speculated during his confirmation hearings. He was never the solid conservative they wanted (neither was Bush).

    It was confirmed he was no conservative when he sided with the left on Obamacare. Sure it was a tax, but one that required a purchase and terms, and the left denied it was a tax anyway. So he sided with the liars in Congress and this shit continued to fuck up the insurance and medical industries for a decade.

    Speaking of GW Bush – does anyone remember how much he was compared to Hitler, just as McCain and Romney were? I guess the GOP can’t figure out how not to get slapped with that one, even when you run the most moderate guy around. No wonder Trump coasted in the primaries – his competition were wet rags of GOP white guilt.

    1. You missed the latest developments. In the world according to progs , Bush II is a swell guy and the type the GOP should be running.

      1. He certainly never got compared to Emperor Palpatine from Star Wars. Surely nobody ever predicted that he was trying to bring down the republic and create an empire. Nobody was writing articles like that.

    2. Right on the money. After the oral arguments — when it seemed obvious to (objective) observers that the Court would strike it down — a former clerk to Justice Scalia told me that he thought a majority would find some way to uphold it…precisely (and counterintuitively) to show deference to the Executive branch on the matter of such a large initiative. He didn’t name Roberts, but that’s exactly what happened. (Roberts’ reasoning in that case was a complete fucking joke–and insiders’ accounts intimate that he flipped at the last moment.)
      Deciding hugely impactful cases on institutional/public relations grounds is bullshit & not admirable. And, as you note, O-Care has been horrific (and the non-reporting of its disastrous effects is Big Media’s biggest crime of the century).

  8. So much for the theory that he just wants to be invited to more Georgetown cocktail parties…

  9. Roberts can be the new Kennedy as long as he’s not the new Woodrow Wilson.

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  11. Sigh….This Roberts-bashing is nuts. It could just be that Chief Justice Roberts is delivering exactly what he said he would during his confirmation hearing. This should not be a surprise. And I do not mean that in a negative sense.

    The overall pattern I see over time are narrow rulings, addressed to a specific legal question. I don’t see an appetite for grandiose anything. I will say though, that the OK decision this week delineating just how big those reservation borders were was a doozy (notably, CJ Roberts wrote in dissent). The other aspect I see is a tendency toward leaving open the door to future revisitation; he leaves options for future SCOTUS Courts to address. That is not bad, IMO.

    I don’t think you view Roberts through a political lens. It just doesn’t fit. Honestly, I don’t know if you can really view SCOTUS justices through a liberal or conservative lens, either. It doesn’t fit well. It comes down to judicial philosophy and here I see CJ Roberts as being pragmatic, and circumscribed. When I look at CJ Roberts through that philosophical lens, then it fits.

    What also makes a lot more sense to me is this supposition:

    SCOTUS gets all the hardest legal questions. By the time a case reaches SCOTUS, no less than a dozen different judges have examined the question, and come out different ways. There are no easy questions. They are hard calls. And really should not be surprising is we see 5-4 decisions.

    You know, I think history will show that CJ Roberts got a significantly higher percentage of unanimous decisions and 8-1 or 7-2 decisions than any previous Chief Justice. Isn’t that what we are actually looking for – definitive answers on constitutional questions?

    The anti-Roberts bias is completely misplaced, IMO. Because it reflects a false premise.

    1. You explained why the bashing is dead on: he doesn’t take a stand and do his job. Instead he prefers to be wishy washy and mostly upholds liberal things.

      He’s one of the worst justices.

      1. Yes he is.

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  14. This isn’t necessarily a bad thing. But it isn’t necessarily a good thing. If you piss everyone off, then at least you are not a partizan shill. But you could just be a fool without any consistent philosophy or guiding principles.

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