Supreme Court

"This Is the Real John Roberts"

In the New York Times I explain that the Chief Justice Roberts we've seen this term is the same one we've seen before.

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What is up with Chief Justice Roberts? Is he moving left? Cowing to political pressure? Trading off liberal and conservative votes? Perhaps it is none-of-the-above, as I explain in this New York Times op-ed. From the beginning:

The chief justice has sided with the Supreme Court's liberal justices on some of the biggest cases of the term, like decisions to invalidate the Trump administration's effort to rescind the DACA program and Louisiana's abortion-provider regulations. In others, he has stuck with the conservatives.

Chief Justice Roberts's voting pattern certainly fails to conform to a predictable ideological pattern. But there is a pattern nonetheless. He is a conservative justice, but more than anything else, he is a judicial minimalist who seeks to avoid sweeping decisions with disruptive effects.

This has been the hallmark of his jurisprudence since he joined the court in 2005. And while there are significant exceptions (most notably, Shelby County v. Holder, which invalidated a major component of the Voting Rights Act), Chief Justice Roberts's anti-disruption jurisprudence has become more pronounced the longer he has been on the court.

The article draws and builds upon my analysis of the Chief Justice's "anti-disruption" approach to statutory interpretation. It is also consistent with some of the themes that emerge from Business and the Roberts Court (Oxford 2016). I will also be expanding on this analysis in a forthcoming essay for the University of Chicago Law Review Online.

I should stress that the aim of this piece is to describe John Roberts' jurisprudence, not to defend it. There are many reasons one might like or dislike his approach, both as a general matter as well as how it cashes out in particular cases.

My piece concludes:

In his confirmation hearing, Judge Roberts got attention for saying that "judges are like umpires" because they "don't make the rules, they apply them." Most commentators dwelled on his suggestion that deciding cases was like calling balls and strikes, but perhaps they missed the real point: "Nobody ever went to a ballgame to see the umpire," he explained.

In much the same way, Chief Justice Roberts does not like the focus to be on the courts. He would prefer it if the major issues of the day were resolved in Congress or at the ballot box.

This is a noble sentiment, but it may also be a bit outdated and naïve. "There is hardly any political question in the United States that sooner or later does not turn into a judicial question," observed Alexis de Tocqueville in 1835. This is only more true today. Whether Chief Justice Roberts likes it or not, hard calls in high profile controversies keep coming his way.

NEXT: Part III: Barr v. AAPC and Stare Decisis

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  1. I understood this to be so a long time ago. The only thing that changed was Kennedy leaving, tilting the balance such that Roberts had to “move left” to retain that balance. Nevertheless, it is a move leftwards, even if not for leftish moral purposes.

  2. I still suspect he’s being blackmailed.

    As an aside, it’s not just men who need to Ghislaine Maxwell — she took a lot of pictures of nude girls which — 22-30 years later, are pictures of women with careers and families.

    Maxwell also hosted Dildo Dinner Parties for wealthy women who might be embarrassed to be publicly associated with such things.

    This could get interesting

    1. I still suspect he’s being blackmailed.

      And in the unlikely event that anyone needed confirmation that he’s not, you just provided it.

  3. Roberts accepts good-faith, carefully made Republican arguments. He does not accept bad-faith, carelessly made Republican arguments.

    1. What about the other 6 combinations of good-faith/bad-faith, carefully made/carelessly made, and Republican/Democratic arguments?

  4. “This is a noble sentiment, but it may also be a bit outdated and naïve. “There is hardly any political question in the United States that sooner or later does not turn into a judicial question,” observed Alexis de Tocqueville in 1835. This is only more true today. Whether Chief Justice Roberts likes it or not, hard calls in high profile controversies keep coming his way.”

    Maybe Tocqueville was being naive. Judicial avoidance under the reasonable doubt test came to dominate constitutional jurisprudence by the end of the 19th century. Followed by a lot of jurists who often leaned towards avoidance, though in different ways, from Holmes to Brandeis to Frankfurter and so on. It went out of favor and Posner predicted the permanent fall of judicial self-restraint about a decade ago. But here we are with CJ Roberts carrying on the tradition.

    It’s nice to see people who are smarter than everyone else still capable of being surprised.

    1. Conservative bile is being aimed at the wrong branch.

      Congress likes being able to dodge controversy because it has to run for re-election and the courts don’t. So I think a significant amount of the punting to the Courts is intentional.

      Take the recent Title VII case. On a secret ballot, most Republicans in Congress are probably just fine with gay people being protected from employment discrimination. They know that they’re on the wrong side of history, and they know that on this issue their whackadoodle base is just that. But, all that said, they have to run for re-election, and Congress doesn’t pass legislation on secret ballots, so they can’t fix the problem by simply amending Title VII to protect sexual orientation. And probably most of them privately breathed a sigh of relief when the SC held that Title VII protects sexual orientation, and that’s why there will be no serious effort in the Congress to overturn the decision. We end up with what most GOP congresscritters consider good policy, and none of them had to do any political heavy lifting.

      My analysis may change if the Supreme Court actually does overturn Roe v. Wade, which I doubt happens. But GOP members of Congress get the best of all possible worlds: The Supreme Court makes the tough social policy decisions, and the congresscritters can tell their base that their hands are tied.

      1. Have you ever thought that the phrase “wrong side of history” implies that there is right side? Thus if there is a right (or correct) side, who determines what is the correct side or the wrong side, and by what measure?

        That said, you’re correct that elected Republicans are usually cowards who punt to the courts on social issues because their primary goal is re-election and maintaining their own power; policy preferences come second to re-election virtually always to politicians of all stripes. It’s a collective action problem.

        1. Since I don’t believe in God, I don’t think we get a do-over if we screw things up. And also that we need to take care of each other because if we don’t, nobody else will either.

          The right side of history is the side that minimizes pain and suffering, that maximizes human potential and human dignity, and that leaves the world better than it was when we got here.

          Oh, and while evil does exist, stupidity is far more common.

          1. How does atheism or deism have anything to do with “do over(s)”? I don’t get it.

            Don’t you get it, then, there is no “right side” of history or “wrong side” of history when all your measures are subjective and frankly, quite personal. I’m sure if the Chinese authoritarians take over the the world, they will say they will say that the right side of history won in the end.

            1. Atheism has to do with do-overs because if God exists, God fixes everything in the end.

              I understand that some theists accept as an article of faith that there is no basis for morality apart from God, and that without God everything is subjective. It’s a really stupid argument. The basis for morality is the same as the basis for eating, sleeping and breathing: Our nature requires it, so we do it. Humans evolved to live in community, which in turn requires that certain behaviors be encouraged and certain others be suppressed. Any society in which there were no rules and anyone could do whatever they wanted would not long survive, and would be a thoroughly unpleasant place to live in the meantime. Birds fly; fish swim; humans do morality. So you could equally as well as what is the basis for birds to fly, and the answer would be the same: Because that’s what they do.

              And I don’t think the Chinese authoritarians are under any illusions that what they’re doing is morally right; it’s in their best interests, which is why they do it, but that’s a separate issue.

              1. “I don’t think the Chinese authoritarians are under any illusions that what they’re doing is morally right”

                Do you think the Chinese authoritarians are under the impression that their actions are morally wrong?

                1. That probably varies from one Chinese authoritarian to another.

                  I don’t actually know what any given Chinese authoritarian thinks, so what I’m about to say is pure speculation, but since you asked: I don’t see how you brutalize the Uighurs the way China does, and for the reasons China does, without knowing at some level that you’re committing atrocities. On the other hand, humans have some pretty amazing powers of self deception, so it’s possible that they have rationalized it away in some form or another. And it may be that they just don’t think about it at all. Like I said, it probably varies from one authoritarian to another.

                  1. You can not apply Enlightenment values to a culture which does not hold them.

          2. If you don’t believe in god, why does a screw up matter? When your dead, then your just dead.

            1. suppose you had 24 hours to live, after which you’ll be dead for keeps. Would you not want the time that you had to be pleasant rather than miserable?

  5. “judicial minimalist who seeks to avoid sweeping decisions with disruptive effects”

    This leaves the one way ratchet in effect. Prior disruptive leftist opinions remain law. Meanwhile conservatives get more and more frustrated.

    He is such a fool. Oh well, après lui, le déluge.

    1. Roberts was a “stealth” candidate with no record to speak of that a newly elected president with no political capital (George W. Bush) after Bush v. Gore. Bush thought Roberts would have a easier path to the confirmation than some sort of Scalia redux. We are paying the price, once again, for feckless Republicans. I can’t really fault Bush, though, for not wanting a bruising SCOTUS nomination fight after Bush v Gore.

      1. Stealth candidate? Only if you pay attention to the DC circuit entirely.

        Solicitor General? Well known SCOTUS litigator?

        I was in law school when his nomination came up. He had a record one could sink one’s teeth into.

        1. Should I have said “dark horse” candidate instead? It was a safe pick, and I stand by the word “stealth”.

          Let’s go back in time, and see what the Washington Post said in 2005.

          “IN NOMINATING Judge John G. Roberts Jr. to the Supreme Court, President Bush picked a man of substance and seriousness. Judge Roberts has served only briefly on the U.S. Court of Appeals for the D.C. Circuit, but he was previously among the country’s best-regarded appellate lawyers, both in private practice and as deputy solicitor general during the administration of George H.W. Bush. Judge Roberts is a conservative, but he has never been an ideological crusader; he has admirers among liberals. If confirmed as the successor to Justice Sandra Day O’Connor, it is likely that he will shift the Supreme Court toward the right. But his nomination is not a provocation to Democrats — as some other possible nominees would have been. Mr. Bush deserves credit for selecting someone with the potential to attract broad support.”

          https://www.washingtonpost.com/wp-dyn/content/article/2005/07/19/AR2005071902035.html

      2. Roberts was a second term appointment.

        He was picked because he was the outstanding appellate litigator of his era and was a longstanding leader of the GOP DC legal community.

        1. Ah, you’re right. Because it was his first appointment, I recall it being first term. Point stands about lack of political capital and Bush v Gore.

    2. “This leaves the one way ratchet in effect.”

      This leaves begged questions begged.

  6. He is a conservative justice, but more than anything else, he is a judicial minimalist who seeks to avoid sweeping decisions with disruptive effects.

    Nonsense. Shelby County was a maximalist decision which required making up new legal doctrine to get it done. Roberts saves his partisanship for cases which deliver the most partisan bang for the SCOTUS prestige expended—mostly for cases which directly involve political questions of the sort that determine election outcomes. On those cases, Roberts has been ruthlessly partisan, and entirely one-sided.

    1. That is a decent point – I’d like to see how Adler integrates Shelby County into his paradigm.

      1. “And while there are significant exceptions (most notably, Shelby County v. Holder, which invalidated a major component of the Voting Rights Act)”

      2. Shelby County was incrementally built on Namudno; it didn’t come from nowhere. And it struck down just one part of the VRA, and only as applied; Scotus provided a roadmap for Congress to rewrite it in a way that would pass muster.

    2. Janus was a maximalist decision too that required overturning precedent and thoroughly rocked the boat and changed the status quo.

  7. Roberts had a long, lucrative career defending the concrete pocketbook interests of real clients while other movement conservatives were engaging in the legal equivalent of dorm room bull sessions. He, unlike them, knows what his paymasters really want, and keeps his eye on the ball.

  8. Maybe you can explain how Roberts’ vote in Bostock is consistent with his preference that “the major issues of the day were resolved in Congress or at the ballot box.”

    1. He held that congress had resolved the issue one way. Congress is free to re-resolve it the other way at any time, and the voters can use the ballot box to elect people to Congress who want to do that, if they’re so inclined.

      1. Noscitur, in Shelby County Roberts overturned the way Congress resolved the issue, while ignoring specific language in the Amendment which made Congress the arbiter of the issue in question.

  9. Roberts invented the penaltax out of whole cloth to save a fatally flawed and clearly unconstitutional law that was brand-spanking new. It is really hard to argue that this is consistent with a desire to avoid disruption or being the center of attention.

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