Supreme Court

The Trouble With John Roberts' Brand of Legal Conservatism

Is the chief justice just a politician in robes?

|

Writing in The Washington Post, law professor Adrian Vermeule and historian Varad Mehta lambast Chief Justice John Roberts, claiming his "apostasies have demoralized the right" and "emboldened the left." As they see it, Roberts "has engaged in strategic maneuvering," casting his lot with the U.S. Supreme Court's Democratic appointees in certain high-profile cases solely in order to protect the Court's reputation. "His goal appears to be to preserve what he takes to be the legitimacy of the Supreme Court, by disproving any suspicion that the justices vote ideologically or otherwise engage in political behavior." The chief justice is guilty of unprincipled judging, they assert, and his shenanigans are doing damage to the Court's legitimacy.

It has certainly become commonplace to think of Roberts as a sort of politician in robes, sticking his finger in the air to see which way the political winds blow. The problem with that way of thinking is that it misses something crucial about Roberts and his judicial handiwork. Namely, Roberts does have an underlying judicial philosophy that motivates him in many of these big cases; it just happens that this philosophy has rapidly fallen out of favor among many of his fellow conservatives.

I am referring to the philosophy of judicial deference or restraint, which, in a nutshell, is the idea that people should take their complaints to the ballot box, not to the courthouse. This view once occupied the commanding heights of the American conservative movement, exemplified most famously by the writings of the late conservative legal icon Robert Bork. "In wide areas of life," Bork argued, "majorities are entitled to rule, if they wish, simply because they are majorities." That meant that the courts should butt out.

Bork did not invent this view. Rather, he inherited it from certain towering legal figures from the early 20th century. The most influential of them was Supreme Court Justice Oliver Wendell Holmes Jr., who repeatedly preached "the right of a majority to embody their opinions in law."

That deferential view is not as popular among conservatives today as it once was. But Roberts can still be seen carrying the Holmes/Bork torch.

During his 2005 Senate confirmation hearings, for instance, Roberts tried to put a positive spin on Kelo v. City of New London, a recently decided case that left many conservatives fuming, angry that the Court had shortchanged property rights in favor of a controversial eminent domain scheme. Roberts offered a different view. The Court's ruling "leaves the ball in the court of the legislature," he said, "and I think it's reflective of what is often the case and people sometimes lose sight of, that this body [Congress] and legislative bodies in the States are protectors of people's rights as well." (Take your complaint to the ballot box, not to the courthouse.)

And then there is National Federation of Independent Business v. Sebelius (2012), which is perhaps Roberts' most famous legal judgment. At issue was the survival of the Patient Protection and Affordable Care Act, also known as Obamacare.

Roberts saved the law from destruction. Why did he do it? In their piece for The Washington Post, Vermeule and Mehta cite the Obamacare case as "an early, important example" of Roberts' "dismaying trend of tactical decisions." He upheld President Barack Obama's signature law, in their view, in order to save the Court from scorching liberal criticism.

But Vermeule and Mehta's take misses what actually happened in Roberts' Obamacare ruling. Not only did Roberts' borrow a page from the Holmes/Bork playbook, but he specifically invoked one of Holmes' most notable statements about the proper role of the courts. "If my fellow citizens want to go to Hell I will help them," Holmes wrote in 1920. "It's my job." Here is how Roberts put it in 2012: "It is not our job to protect the people from the consequences of their political choices."

Whether or not you agree with the chief justice's embrace of judicial deference, it would be a mistake to downplay this important facet of his thinking.

NEXT: The Year Teachers Unions Killed the Goose That Laid the Golden Egg

Supreme Court Judiciary Courts

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments

89 responses to “The Trouble With John Roberts' Brand of Legal Conservatism

  1. Yes, he is. Next question?

    1. Get $192 hourly from Google!…Yes this is Authentic since I just got my first payout of $24413 and this was just of a single week… I have also bought my Range Rover Velar right after this payout…TYH It is really cool job I have ever had and you won’t forgive yourself if you do not check it…

      =-=-=-=-=-=-=-=-=-= Home Profit System

      1. [ PART TIME JOB FOR USA ] Making money online more than 15$ just by doing simple work from home. I have received $18376 last month. Its an easy and simple job to do and its earnings are muchs better than regular office XYX job and even a little child KERD can do this and earns money. Everybody must try this job by just use the info
        on this page…..READ MORE

    2. He proved it with his tortured interpretation of Obamacare and has continued to prove it.

      1. [ PART TIME JOB FOR USA ] Making money online more than 15$ just by doing simple work from home. I have received $18376 last month. Its an easy and simple job to aef do and its earnings are much better than regular office job and even a little child can do this and earns money. Everybody must try this job by just use the info
        on this page…..work92/7 online

    3. I dunno whither the constitution follows th” flag or not, but th’ Supreme Court follows th’ iliction returns” — Mr. Dooley (Finley Peter Dunne)

    4. Anyone who thinks judges are not politicians in robes is holding to a naive view of the law. The differences in judges occur, as the article points out, due to their differing judicial philosophies. I realize that statement is not acceptable to the red meat fringes of our political system who feel that any decision that differs from their policies means that the person is either a communist or a fascist.

    5. Get $192 hourly from Google!…Yes this is Authentic since I just got my first payout of $24413 and this was just of a single week…KIUjki I have also bought my Range Rover Velar right after this payout…It is really cool job I have ever had and you won’t forgive yourself if you do not check it…….Home Profit System

    1. I think he was correct on that one. He wouldn’t let Congress get away with calling what’s obviously a tax a penalty for a violation.

      1. I have received $17634 last month from home by working online in my part time. I am a full time student and doing this easy home based work for 3 to 4 hours a day. This job is very simple to do and its regular earnings are much better than any other office type work.
        See detail here………… USA ONLINE JOBS

      2. But the Constitution severely limits what Congress can tax, and Roberts ignored this. It cannot be a direct tax: it was carefully written to avoid being an income tax authorized by the 16th Amendment, nor is it apportioned between the states by population. So Roberts decreed it an “indirect tax”, but that has never meant a tax on doing nothing.

  2. “It is not our job to protect the people from the consequences of their political choices.”

    The people at the federal level, or at the state level?

    As I recall, the attack on Obamacare was based on federalism, not on a constitutional right not to buy insurance.

    So by supporting the right of “teh people” to pass laws through Congress, he was denying the right of the people of the states to pass their own conflicting laws.

    So his smug quote gets him nowhere except among ignorant journalists.

    As for Oliver Wendell Holmes, his celebrity days may be numbered as progressives start looking over his eugenics and voting-rights decisions.

    1. The only consequences Roberts was really concerned with is doing what is right, voting against clearly unconstitutional legislation, and the consequences FOR him. He reminds me so much of cucks like John McCain and other RINOs. More concerned with being a media darling that actually upholding principals.

      1. I am now making extra $19k or more every month from home by doing very simple and easy job online from home. I have received exactly $20845 last month from this home job.AMs Join now this job and start making extra cash online by follow instruction on the given website………….

        =-=-=-=-=-=-=-=-=-=-= Home Profit System

      2. Roberts “revers the court..”. McCain “revered the Senate”. Their decisions will forever have a certain smell about them.

    2. [Holmes’] celebrity days may be numbered as progressives start looking over his eugenics and voting-rights decisions.

      Are you fucking kidding me? That’ll make him a star in their eyes.

    3. Holmes is not exactly a justice anyone should be proud of emulating.

  3. “The Trouble With John Roberts’ Brand of Legal Conservatism”

    The trouble with Reason’s brand of pragmatic libertarianism is that it avidly supports coercive monopoly government while pretending to oppose coercion.

    1. Reason libertarianism is kinder gentler statism – where they have their preferences imposed on others or allowed to them, but only as taxable permissions.

    2. lol word.

  4. John Roberts…what an asshole.

    1. Hey,

      Assholes are useful (Roberts, not so much). Without assholes, we would all be full of shit.

  5. Deference to legislators is no more a “principle” than is deference to dictators. The entire purpose of the Constitution is to prevent dictatorship by the majority. Holmes, Bork, Roberts, and countless other judges should be impeached for dereliction of duty.

    1. This. The Constitution is meant to check the power of the government and the majority when it interferes with personal freedoms. Judicial deference is a cop out to avoid the courts doin their jobs.

    2. ^, All the more so where the BOR is concerned; tyranny of the majority is not even mentioned in this article.

      In a area that concerns me, there seems to be a lot of confusion [ok, undermining would be a better word] over the Heller and McDonald decisions; is it not the responsibility of SCOTUS to weigh in on such matters, where there is a diversity of opinion among lower courts?

      And yet they denied cert on 11 2nd Amendment cases last year, thereby foregoing several opportunities to clarify these decisions?

      1. It is speculated that no one -on either side- of the RKBA question wanted to take the chance of which way Roberts (the new ‘squish’ after Kennedy ) would decide. So, everyone waited for nRBG to check out and see who would take her place.

        We shall, I hope, soon see where things lie.

    3. Yes, the Constitution was written to put the rights of individuals over the rights of the government or the mob. Legislative deference does the opposite, it just means the majority party can trample the rights of the minority.

      It is my problem with Kelo it decided that the city’s right to more income trumped the citizens’s rights to property and pursuit of happiness.

  6. So just to make sure (the article is paywalled)…Roberts uses judicial deference to uphold abortion laws, right?

    1. And to refuse to defend stare decisis he disapproves of. Man, the Bush family in five tries provided one judge worth a damn. Fuck that family.

      1. Sadly, Bush Sr and W probably saw the one good justice as the mistake and the other four as “good”.

  7. Is the chief justice just a politician in robes?

    Yes. Now do the other 8.

    1. Sometimes I think liberals see the SCOTUS as just another legislative branch. It would explain a lot. Unfortunately, some on the right seem to be taking up the same position as a reaction.

      1. I know they do.

        But it started long ago when the political class read deep into Marbury v Madison and understood that the Court had taken up the power to decide what ‘Constitutional’ means.

        So, if you can get a majority of judges with your political philosophy on the bench, having to go through the legislative process becomes secondary to getting the right case be heard to provide a venue to make the law what you want it to be, without being held responsible and possibly being voted out of office, losing that cushy seat on the .gov gravy train.

  8. Remember what I said about Justice Holmes?

    They’re already coming for his daddy, the physician/poet of the same name –

    “Harvard Medical School Dean George Q. Daley approved renaming the school’s Holmes Society” etc.

    “Holmes was one of the first American intellectuals to promote the racist doctrine of eugenics.” etc.

    https://www.thecrimson.com/article/2020/10/7/harvard-hinton-society/

    The son (Justice Holmes) was also into eugenics, you know.

  9. What Roberts fails to understand is that there’s an important difference between the Court’s real legitimacy (its devotion to principle and to the Constitution) and its image of legitimacy; and it’s the real legitimacy he has the duty to preserve.

    The recent report that Roberts angrily refused to hear the merits of Trump’s election challenge because of riots, if true, definitely amounts to putting image over real legitimacy. He should be impeached.

    1. Also, if true, it shows that legitimacy in America now is SOLELY from the barrel of a gun.

      Good job, John Boy.

    2. “refused to hear the merits of Trump’s election challenge because of riots”

      Even though that seems pretty in line with Roberts’ way of thinking, it would appear that claim was false. It was claimed an aid overheard him yelling that through a closed door session. However, the court responded that they were not holding sessions at the time except on zoom due to covid.

      1. None of which denies the essential truth. He could very easily have been yelling while on a zoom call.

  10. It is interesting that opposition to “legislating from the bench” goes out the window when your justices are in the majority. After that its we have the votes we get our way.

    1. ….except the Obamacare decision was specifically Roberts legislating from the bench.

    2. Federalist Papers; specifically as it addresses tyranny of a majority. You should read up on it. Essentially there are areas where a legislature, no matter how popularly elected, cannot impose restrictions upon persons that are otherwise constitutionally protected.

      But of course such restraints upon government often runs counter to progressivism.

  11. I cannot believe what I am reading from Root. Personally, I think law professor Adrian Vermeule and historian Varad Mehta have it completely wrong. Call it willful blindness, or selective amnesia.

    Chief Justice Roberts told the Senate at his confirmation what he thought his role was, and what actions he would undertake as Chief Justice. It is not a mystery. It is very much in keeping with tradition, and exactly what we need in a Chief Justice. If you’re pissed at him for National Federation of Independent Business v. Sebelius then you did not understand the reasoning behind his written opinion.

    First, nominee Roberts told the Senate that a Chief Justice Roberts would work to build consensus. Indeed, he has done so. The proportion of SCOTUS decisions that are 9-0 and 8-1 under his tenure are significantly higher than the historical average. That is the data. Is this not what we want…a consensus builder as Chief Justice to answer the most difficult constitutional questions?

    Second, nominee Roberts told the Senate that a Chief Justice Roberts would be very circumscribed. Why? Nominee Roberts stated he believed the judiciary in general has a circumscribed role in our constitutional republic. Indeed, CJ Roberts has been circumscribed. CJ Roberts actively works to narrow the actual constitutional question to be answered. Now, I don’t know about you other libertarians, but this libertarian is very happy with a Chief Justice who actively works to narrow the constitutional question to answer, and therefore the scope of SCOTUS rulings.

    CJ Roberts is at the mid-point of his tenure. He has another 15 years to go. When I look at the entirety of his tenure, I’d say Roberts will go down in history as one of the most influential and consequential Chief Justices we have ever had.

    1. When I look at the entirety of his tenure, I’d say Roberts will go down in history as one of the most influential and consequential Chief Justices we have ever had

      Sure, but for all the wrong reasons. He used tortured legal reasoning to claim that Obamacare was something that it actually wasn’t in order to preserve it, and later established that EOs have the permanent force of law when those EOs align with left-liberal political goals.

      Whenever there’s a major issue that is getting wall-to-wall media attention, he caves to their preferred position every single time.

      1. Red, how many cases will CJ Roberts have involvement with in 30 years? Something like ~2,500? You are basing your perception on just a few cases; I feel you’re ignoring the totality of his record. You will probably agree with his reasoning in ~2,200 of those 2,500 cases over his 30-year (one hopes) tenure.

      2. EOs have the force of law until they’re displaced by something more solid, i.e. with more backing. And it was Congress who were trying to claim the PPACA was something other than it was.

        1. EOs ‘may, or may not’ have the force of law, but ANY succeeding POTUS (Since an EO is a Presidential Policy directive) should have plenary power to cancel any previous EO simply by making another.

          That Roberts convinced the Court otherwise is the beginning of real tyranny

    2. From a reply I posted above.

      In a area that concerns me, there seems to be a lot of confusion [ok, undermining would be a better word] over the Heller and McDonald decisions; is it not the responsibility of SCOTUS to weigh in on such matters, where there is a diversity of opinion among lower courts?

      And yet they denied cert on 11 2nd Amendment cases last year, thereby foregoing several opportunities to clarify these decisions?

    3. Smart people really are stupid sometimes. It’s really not that hard.

      Judicial deference to constitutional laws should happen 100% of the time.

      Judicial deference to unconstitutional laws should happen 0% of the time, and is an abdication of the judicial function, when it happens.

  12. After FDR tried to pack the Court in 1937, the justices started approving some of his New Deal legislation.
    Now the Democrats are again threatening to pack it, and I wouldn’t be surprised if Roberts makes a further pivot left.

    1. And it was someone named Roberts the first time, too.

  13. Roberts after 40 years is the perfect DC creature. He was molded to be this way.

  14. Your argument would have a lot more weight if not for the blatant intellectual dishonesty Roberts shows in some of his more egregious opinions, such as NFIB v. Sebelius and the recent DACA case.

    Roberts chooses which way he wants to rule, then picks a rational to get there. It’s disgusting. I never liked RBG as a justice; I strongly disagreed with her reading of the constitution and many of her policy views; but I respected her for her honesty and integrity. I cannot say the same about Roberts, even as his judicial opinions are more in line with mine.

    1. “I respected her for her honesty and integrity.”

      LOL, like she does not argue backwards from her preferred outcome.

      Sure.

  15. And here I thought we had a constitution which explicitly avoided democracy wherever possible, which even then explicitly limited federal powers. If chattel slavery ever comes into vogue again, are those political winds also cause to ignore our constitution such that Congress will legislate it with Roberts’ approval?

  16. “entitled to rule, if they wish, simply because they are majorities.”

    Isn’t that called “mob rule”? I thought we had a whole system established to keep that shit out.

    1. Madison, Hamilton, and Jay [Federalist Papers] called it the “tyranny of the majority;” and that is precisely what the Constitution is supposed to protect against; to not simply defer to the trends of the day.

  17. “should take their complaints to the ballot box”

    What happens when the ballot box is decided by thievery?

    1. Sullum will write a million shrieking words obfuscating it.

      1. two. two million.

        1. Oh ye of little faith, ten million.

  18. “It is not our job to protect the people from the consequences of their political choices.”

    Actually, this is, in fact, your job.

    1. Especially when the people who made that choice is, in aggregate, a 51-49% majority.

      49 of 100 people did NOT make that choice, and shouldn’t have those choices made by others.

      1. Wrong: It was a 49 to 48% plurality – even ignoring Benford’s law and all the other evidence of fraud. 51% of those who allegedly voted, voted against the “winner”.

  19. Yeah it`s Possible…Anybody can earn 250$+ daily… You can earn from 6000-12000 a month or even more if you work as a full time job…It’s easy, just follow instructions on this page, read it carefully from start to finish… It’s a flexible job but a good
    eaning opportunity.. Here is More information.

  20. To be fair, the mantra of deferring to the “will of the people” as expressed at the ballot box began with the progressives of the early and mid-20th-century. The Bork conservatives turned to this doctrine when the progressives of the mid to late 20th century developed a taste for striking down laws that they disagreed with on purported constitutional grounds, particularly in the area of contraception and abortion. Thus proving that each side can jump back and forth as necessary to further their respective agendas.

    1. Even more broadly, we can say that conservatives have a habit of picking up ideas dropped by the left – ideas the left has given up as inconvenient – eg, judicial deference, color blindness, etc.

  21. the C word for John Roberts is “celebrity” … his lifeblood

  22. What? Since when did Republicans believe that the majority should rule? Not as long as I can remember.

    1. Yeah. Conservatives don’t have a longstanding deference to authority or anything.

      That many don’t NOW is the only thing that’s new.

  23. “It is not our job to protect the people from the consequences of their political choices.”

    But, only if that political choice is constitutional.

    1. Yeah it’s really not that hard. Defer to constitutional laws. Strike down unconstitutional laws. That’s the judicial function.

  24. I think it should be noted that Roberts really started acting this way after Obama’s norm breaking scolding of the SCOTUS Citizens United majority in the State of the Union speech. It was the threat to the court from one of the most imperial of presidents that seemed to influence Roberts’ bizarre reasoning on the ACA and subsequent cases.

  25. So, in summary, according to Damon, conservatives and libertarians should like Roberts because his judicial philosophy seems similar to that of a progressive eugenicists who justified forced sterilizations and embraced majoritarianism and a living Constitution. Maybe Damon just saw the word “deference” and thought it was kind of conservative-sounding?

  26. Damon Root says,” Roberts “has engaged in strategic maneuvering,” casting his lot with the U.S. Supreme Court’s Democratic appointees in certain high-profile cases solely in order to protect the Court’s reputation.” Maybe it’s as simple as Roberts interpreting the Constitution differently from the Court’s conservative justices. Why does it have to be a plot?

  27. By Damon Root’s logic we should do away with the Constitution entirely. No, we don’t defer to legislatures on freedoms protected by the Constitution, nor should we. Kelo vaporized the takings clause of the 5th amendment.

  28. No discussion of Shelby County v.Holder, a decision cut from whole cloth if ever there was one?

  29. Another way of looking the jurisprudence of Roberts— and many other judges— is that he believes that the role of the courts is not to apply the law, but to vindicate State policy.

  30. This Roberts maggot has never been anything but a liberal suck-up and political whore who’d do anything to avoid being blackballed from the liberal-socialist-communist Georgetown coctail soirees and galas.

    He’s the subhuman personification of a stinking pile of shit.

  31. Roberts has never been anything but a politician and a statist. He learned his statist judicial tactics on the U.S. Court of Appeals for the D.C. Circuit. That court’s main purpose is to protect the U.S. government and all of its agencies against legal challenges to their power. So Roberts honed his skill at defending the federal government against any and all challenges, constitutional or other. How can Damon Root not understand this? Roberts has always been dedicated to protecting the arbitrary power of the state. Any argument that serves that purpose will do fine. He has no commitment to the limited government principles of the Constitution, including the Bill of Rights.

  32. You would have to get up awfully early in the morning to convince me that Roberts was more concerned about his DC social status than the Constitution when he voted that the ObamaCare mandate was a “tax.” It is an example of judicial activism NOT “restraint.”

    1. Did you get that backwards?

  33. Contrary to this delusional article, judicial LYING malfeasance and irresponsible abdication is NOT deference. Corrupt Roberts LIED about 0bamacare being a tax since 0bamacare itself denied that, and there were similar shenanigans at work in manifestly unconstitutional Kelo.

  34. The Supreme Court is forced on to people. Like rape, no one can ever legitimize it.

  35. I think you guys are onto something.. definitely sounds a bit premeditated. But I don’t think it’s surprising to say the least. Most of these guys have to act in their self interest and “political” as you say. Or else how else can he maintain his position of authority?
    https://franklinsquareconcrete.com

  36. He helped destroy 8 East Street, New London, CT. Now the entire city block is a wasteland. Roberts and his pals have moved on. Now they are working on the rest of the county.

    1. Correction- the Supreme Court, not Roberts

Comments are closed.