The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.