The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There is much disagreement about other aspects of the Supreme Court's recent performance, few commentators doubt the crucial significance of Chief Justice John Roberts' role in determining the outcome of major cases. But while it's difficult to deny Roberts' importance, there are widely divergent interpretations of what he is doing and why.
In an insightful recent New York Times op ed, co-blogger Jonathan Adler argues that Roberts is a "judicial minimalist" who "seeks to avoid sweeping decisions with disruptive effects." On this account, he wants "to resolve cases narrowly, hewing closely to precedent and preserving status quo expectations." Some conservative critics of Roberts' jurisprudence argue that he lacks "courage" and therefore avoids making decisions likely to anger the left. Northwestern University law professor John McGinnis contends that Roberts is balancing a number of different considerations, trying to "maximize" some combination of achieving conservative jurisprudential goals and protecting the Supreme Court's institutional standing.
Each of these theories have useful insights, particularly the first and third. But none fully accounts for Roberts' major decisions since he became Chief Justice.
Jonathan Adler has effectively shown that judicial minimalism really is an element of Roberts' thinking. But as he recognizes, "there are significant exceptions (most notably, Shelby County v. Holder, which invalidated a major component of the Voting Rights Act)." If Shelby County were the only such exception, or one of only a very small number, it could perhaps be discounted. But, in reality, there are a great many important cases where Roberts has cast crucial votes to overrule precedent, upset existing expectations or both. Notable examples include Parents Involved in Community Schools v. Seattle (2007) (severely limiting affirmative action programs in primary and secondary schools); Citizens United v. FEC (2010) (overturning precedents and laws limiting corporate speech rights), Janus v. AFSCME (2018) (overturning longstanding precedent allowing states to mandate mandatory union dues for public employees), Knick v. Township of Scott (2019) (reversing longstanding precedent barring most takings cases against state and local governments from federal court). This year, Roberts cast the decisive vote in Espinoza v. Montana Department of Revenue, which is likely to lead to the invalidation of Blaine Amendments barring state assistance to religious schools in 37 states; he also voted with the majority in Bostock v. Clayton County, a decision overturning many years of lower court (though not Supreme Court), executive branch, and congressional precedent holding that sexual orientation discrimination is not forbidden by the Civil Rights Act of 1964. And this list could easily be extended.
My point here is not to criticize Roberts' decisions in these cases. I actually agree with nearly all of them (Janus is a possible exception). In the Knick case, I authored an amicus brief urging the result the Court reached, have written articles defending the result and explaining why the Court was justified in overruling precedent in this instance. Rather, my point is that these decisions are hard to defend on grounds of judicial minimalism. If Roberts has a commitment to minimalism, he also evidently has other commitments that he values more. When the two come into conflict, the latter often prevail, including in a wide range of high-profile cases.
The list of Roberts' non-minimalist decisions also undermines claims that he lacks the "courage" to reach decisions that seriously offend the left. With the notable exception of Bostock, all of the cases I listed attracted widespread liberal criticism, often even anger. The same, of course, is true of Shelby County v. Holder. Citizens United generated more outrage on the left than any other Supreme Court ruling in many years; it was also unpopular with the general public. These reactions were predictable. Yet Roberts still cast a decisive vote for what became the majority opinion.
It's worth noting that Roberts' also deeply offended the left with his decision in the 2018 travel ban case (it angered me as well). I continue to believe it was one of the worst Supreme Court decisions of my lifetime. But one criticism I can't make against it is the claim it was a written by a Chief Justice who lacks the courage to offend the political left.
The idea that Roberts seeks to avoid offending the left may contain one small kernel of truth: he does not want to completely alienate the left to the extent that they come to see the court he leads as illegitimate. He likely recognizes that the Court could potentially suffer a "legitimacy crisis," which could lead to measures such as court-packing or politicians refusing to obey judicial decisions that go against them. But, by the same token, he also would prefer to avoid alienating the political right to such an extreme degree, either.
In sum, I think Roberts has only a modest and limited commitment to judicial minimalism, one that in his mind often gets outweighed by other considerations. And while I don't claim that he's a profile in courage, he's also more than willing to attract left-wing criticism.
McGinnis' strategic maximization theory perhaps comes closest to accounting for Roberts' jurisprudence. As he points out, Roberts' willingness to balance jurisprudential and strategic considerations is not unusual for a chief justice. He is in this respect following in the footsteps of previous chiefs, including John Marshall and his own immediate predecessor William Rehnquist (for whom Roberts clerked). McGinnis also notes that Roberts is in an unusually strong position to engage in balancing, because he's not only the chief justice but—since the retirement of Justice Anthony Kennedy in 2018)—also the key swing voter on the Court:
His performance this term has been completely in keeping with that distinctive self-consciousness and concern with protecting an institution that he no doubt sees under threat. Court packing again poses a substantial threat. Several Democratic candidates for president called for it, and Democratic senators have threatened to eliminate the filibuster, so it might be achieved.
No chief justice wants to be remembered as the one who presided over court packing. Thus, it is not surprising that in high-profile issues Roberts moved decisively left, particularly in cases that concerned DACA and abortion rights. Dreamers and the right to abortion command majorities in the country and overwhelming majorities among Democrats who will decide whether court packing moves forward in a unified Democratic government.
On the other hand, Roberts wrote two opinions delivering long-sought victories to conservatives in Seila v. CFPB, where he broadened the President's power to fire the heads of administrative agencies and in Espinoza v. Montana Department of Revenue where he held that religious schools could not be prohibited from participating in programs in which a state contributed to private school funding. No one outside the beltway cares much about the removal power of the President, and the exclusion of religious schools is unpopular among the public, though not among academics of course.
Even in the DACA and abortion cases, Roberts may have been creating a foundation for conservative victories at a more propitious time. The DACA case strengthened the requirements for agency explanations of its decisions, which may be used to constrain the administrative state. His decisive opinion for himself alone in the abortion case subtly cut back on the balancing test that would likely invalidate more restrictions on abortions. John Roberts was a history major at Harvard and his model is John Marshall. He wants to leave the Court as strong as he found it, even if that means bobbing and weaving to achieve his jurisprudential and ideological goals.
I think John underestimates the extent of left-wing opposition to the Espinoza decision, and the degree to which state support for religious schools has (however unfortunately) gotten caught up in our culture wars. But the general thrust of this seems right.
As he explains, Roberts has conservative jurisprudential goals that he seeks to achieve. But he also wants to preserve the Court's institutional standing, both for its own sake, and because he knows he is unlikely to achieve any of his objectives if the Court's position is seriously undermined by court-packing or some other similar development.
At the same time, this theory cannot easily account for the pattern of his decisions. It isn't the case that he gives the left what they want in every particularly high-profile case, or that he does so in those where the liberal position is popular with the general public. Citizens United, Janus, and Shelby County are all notable counterexamples.
Thus, it seems likely to me that Roberts' decisions in high-profile cases are also in large part dictated by how strongly he cares about the legal issues at stake. For example, cases like Janus and Citizens United (as well as many of his other votes), suggest that he has a strong commitment to a broad conception of freedom of speech, and is willing to offend both the left and the general public in order to promote it.
All of this is consistent with the strategic maximization theory, at some level. The theory does not claim that institutional and reputational concerns will always outweigh jurisprudential ones. But it does make it difficult to test the theory, or to use it to generate determinate predictions about future cases.
Unlike justices such as Stephen Breyer and the late Antonin Scalia, Roberts has never systematically articulated a general judicial philosophy, unless you count his famous statement analogizing judges to umpires calling balls and strikes. He has also been careful not to tip his hand too much about which areas of law he considers especially important. Thus, it is hard to tell when institutional concerns will outweigh other considerations in his mind.
If I had to pick, I would say that Roberts is more a strategic balancer of multiple values than he is either a judicial minimalist or a coward fearful of offending the left. But his jurisprudence is not easy to pin down. Of course, that might be a strategic choice, too.