The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As most commentators see things, Chief Justice John Roberts had a terrible year during the 2021-22 Supreme Court term. Media accounts claim he has lost control of the Court (a narrative that, I think, greatly overstates the extent to which he—or any one justice—could ever control it in the first place). Liberal New York Times columnist Pamela Paul has called on Roberts to resign, a cause my co-blogger Josh Blackman has long advocated from the right. Whether on the right or the left, the poor Chief can't get any love.
Except from me! I've had my differences with Roberts over the years, most notably on NFIB v. Sebelius and the travel ban case. But during the 2021-22 term, he achieved the impressive distinction of voting what I think is the correct way in every major case on which I have a view. Every. Single. Case. Wow, just wow!
That includes both those cases where he voted with the other conservatives and those where he broke with them. Let's take a look at this long and impressive list. I include links to my analyses of each case, where relevant:
1. The eviction moratorium case. Roberts leads the Court in striking down a dangerous power grab initiated by Trump and revived by Biden.
2. Whole Woman's Health v. Jackson, the SB 8 case. Yes, absolutely the Court should have ruled that people can sue state court clerks, as Roberts advocated (though I would have gone slightly further and said they could just sue the courts themselves).
3. Trump v. Thompson: Rejecting Trump's attempt to use executive privilege to block release of documents to the January 6 Commission.
4. Carson v. Makin—barring states from discriminating against religious schools in voucher programs. In the process, Roberts' opinion for the Court eviscerated the dangerous "status-use" distinction, which might have opened the door to large-scale religious discrimination in a wide range of government programs.
5. West Virginia v. EPA. It was indeed a major question that Congress didn't clearly delegate! The fact that "common good constitutionalism" maven Adrian Vermeule hated the ruling is icing on the cake. One of my rules of thumb in constitutional theory is that there's a high likelihood that anything CGC advocates are against is likely to be good! On a slightly more serious note, I haven't written about this case specifically. But, elsewhere, I have argued for strong enforcement of major questions and nondelegation limits on executive power. The fact that the likes of Vermeule want to gut those limits should perhaps lead progressives to reconsider their own suspicion of them.
7. Both vaccine mandate cases: NFIB v. OSHA (striking down the OSHA large employer mandate), and Biden v. Missouri (upholding the mandate for health care workers working in facilities receiving federal Medicare and Medicaid funds). Roberts was right in both cases—one of only two justices who can claim that distinction (Kavanaugh is the other).
8. Biden v. Texas—the "Remain in Mexico" case.
9. NYSPA v. Bruen (gun control/Second Amendment case). The right to bear arms means you can in fact actually bear them! Though I have some reservations about the majority's reasoning in this case.
10. Dobbs – I am almost the only person other than Roberts himself who supports his concurring opinion (though I would have reasoned it somewhat differently). I haven't outlined my reasoning in full, and probably won't try to do so, given that abortion isn't a major focus of my work. But, in brief, I think Roberts' approach of maintaining abortion rights up to 15 weeks into a pregnancy strikes a reasonable balance between cutting back on Roe v. Wade (a flawed ruling), and recognizing the important reliance interests engendered by it, which I think were underestimated by the majority.
I don't have any strong view on the Coach Kennedy case (except perhaps that its significance is overblown). So I don't count that one. And I probably differ with Roberts on several second-tier cases from this term. But he got all the biggest ones right. Indeed, he's the only justice with whom I agree on all of the above. No one else even came close! By my count, no one else got more than seven or eight of them right.
How could this have happened? Cynics will say I have trimmed my sails to curry favor with the Chief. But anyone who knows my writings well could easily have predicted my views on nearly all of these cases in advance (with the possible exception of Dobbs). On many of them, I publicly expressed those views before the decision came down.
So maybe it's Roberts who has moved closer to me, rather than the reverse! Before ruling on every big case, perhaps he now asks "What would Ilya do?" And he knows to avoid #IlyaConfusion! The "other" Ilya and I differ on at least a couple of the above decisions.
Of course the real explanation is almost certainly that it's all just a big coincidence—a function of the cases the Court heard this term. Perhaps next year, I will again be at odds with the Chief on at least a few big rulings. Still, I'm going to enjoy his great work while I can—and give him credit for it! He certainly isn't getting much credit from anyone else.
And maybe, just maybe, Chief Justice Roberts has decided that the best way to bolster the Court's standing with the public is to seek the sensible center. And what better guide than a legal scholar officially certified as a centrist by no less an authority than the New York Times? If you doubt my centrist credentials, well that just shows what a dangerous extremist you are.