The Volokh Conspiracy

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Supreme Court

Is the Chief in Charge?

This is still the Roberts Court -- at least for now.


The Supreme Court decided two of this term's highest profile cases last Thursday in narrower and less controversial ways than many expected. The Chief Justice could not have scripted it any better.

The term's major religious liberty decision, Fulton v. City of Philadelphia, produced a narrow, unanimous judgement, vindicating the petitioners' religious liberty claims without disturbing settled precedent. Chief Justice Roberts wrote the opinion for the Court, and he was able to rule for the religious claimants without provoking a spirited dissent on the virtues of stare decisis from Justice Elena Kagan.

And in California v. Texas, the "Return of the Jedi" of Affordable Care Act cases, the Court turned away a longshot existential challenge to the ACA on standing grounds. While Chief Justice Roberts did not write the Court's opinion, there is good reason to believe he wanted to dismiss this case on Article III standing grounds. Standing is an issue dear to the Chief Justice's heart. It's the subject of his only opinion as the Court's lone dissenter and one of his few law review articles. And, California v. Texas, a standing ruling had the extra benefit of insulating the Chief from having to revisit (and potentially reconsider) his Janus-faced opinion in NFIB.

The Chief Justice should also be happy at the high degree of unanimity on the Court thus far this term. Just over half of the cases decided after argument have been unanimous in the judgment (i.e. they produced no dissent). Given how few cases the Court has heard this term, that is nothing short of remarkable (even if, in all likelihood, that percentage will decline slightly in the next two weeks). This would suggest the Chief continues to be somewhat effective at encouraging agreement among his colleagues and discouraging dissents.

Of course, not everything is going the Chief's way. He's not been in the majority as often as Justice Brett Kavanaugh, who has ruled with the majority in 96 percent of cases so far this term, according to SCOTUSBlog. The Chief is tied for fourth with Justice Clarence Thomas, and is behind Justices Neil Gorsuch and Amy Coney Barrett.  He was on the losing end in two major criminal law cases, Borden and Van Buren, and found himself on the wrong side of an 8-1 decision for the very first time. He also did not fare as well on the "shadow docket" as he might like.

There are also storm clouds on the horizon for the Chief's vision. There are several divisive cases left to be decided this term, and the Court's other conservatives definitely seem more willing to reconsider precedent than the Chief would like. Thus is will be interesting to see whether the Chief is able to keep the Court on its current conservative minimalist trajectory, or whether the Court's conservative majority will become more assertive. As always, only time will tell.

NEXT: Today in Supreme Court History: June 21, 1989

Supreme Court

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15 responses to “Is the Chief in Charge?

  1. “(Chief Justice Roberts has) not been in the majority as often as Justice Brett Kavanaugh, who has ruled with the majority in 96 percent of cases so far this term, according to SCOTUSBlog.”

    In his entire tenure, which started in 2018, Kavanaugh has been in the majority 85% of the time, the highest rate of any justice since 1953. (Seattle Times, 6/18)

    I’m wondering. . . is Justice Kavanaugh just a rubber stamp kinda guy and instead of providing any type of insight, mainly just nods his head and votes with the majority regardless of the issue?

    1. While I’m not one to pass up on the chance to dunk on Kavanaugh, he is the median vote on the court ideologically. It makes sense that he would be in the majority most of the time.

    2. Based on some of his writing, I think Kavanaugh is a man that desperately wants to be liked by everybody. It’s an impossible goal. Maybe he’ll wake up and realize it, but I’m not holding my breath.

  2. After his great playing career, Rams and UCLA great Bob Waterfield became the head coach of the Rams for three years in the early 1960’s. He got into a huge dispute over officiating, and contended that the Commissioner (Pete Rozelle) wasn’t doing enough to discipline officials who were supposedly taking revenge against his team for his showing them up. He finally, frustrated, said to the media “I don’t know if anyone is running this league anymore”.

    Rozelle, the next day, issued a statement. “Pete Rozelle is the Commissioner and runs the league, and that information will cost Mr. Waterfield $5000”.

  3. Roberts’ loyalty seems to be more to the institution (the Supreme Court) than to the Constitution.

    1. So he’s more practical and pragmatic than abstract and revolutionary? Like a good conservative?

      1. Deep down, most of the commentariat here identify more with Lenin and Trotsky than Burke.

      2. QA,
        I find that a fair characterization of Mr. Roberts

    2. Are there some decisions you have in mind that you think illustrate that point?

    3. He should never have been named Chief Justice.

  4. Having them sit on the bench for life seems a bit long. They should be turned over ever 10 years to keep current like everything else in our country. Experienced Roofer

  5. How much legal differentiation is there between a Justice and the Chief Justice? Ignore any difference in pay. Is it described in legislation? Agreed to among the 9 justices somewhat like each chamber sets up its own rules? I’ve seen comments that the Chief Justice decides who writes opinions, but that seems pretty minor, and what if the justices stage a mini mutiny and agree, 8-1, to ignore his choice of author and substitute their own choice?

    1. The Chief also has expanded administrative responsibilities for the entire Art. III judiciary

    2. No the Chief justice doesn’t really get to decide who writes opinions, it is the Sr. Justice in the majority after the oral argument and conference. The Chief is the Sr. justice, so if he sides 4-5 with the liberals then Thomas picks the author.

      Also in a case where it’s like 7-2, 6-3, and he assigns the case to himself, or another justice to write the decision too narrowly then he could lose the majority and the dissent or a concurrence would become the majority decision.

      1. That all sounds very realistic and even obvious, now that you’ve said it 🙂

        I have this vision of them all writing their own decisions, passing them around, adding notes and suggestions, until everything eventually settles out.