Federal Courts and Nominations

John Roberts’ long game

Supreme Court Chief Justice John Roberts is not the revolutionary that conservative activists want him to be.

He moves slower than they want, sides with liberals more than they want, and trims his sails in ways they find maddening. But he is still deeply and unmistakably conservative, pulling the law to the right — at his own pace and in his own image.

Why it matters: The idiosyncrasies that shape Roberts’ approach to high-profile cases are becoming more clear over time. And because the Supreme Court has the final say on almost every political issue of any consequence, those idiosyncrasies often become the law of the land.

Driving the news: Over the past few weeks, Roberts sided with the court’s liberal bloc on abortion, LGBTQ discrimination and DACA. And he wrote Thursday’s 7-2 ruling that said Manhattan prosecutors can subpoena Trump’s taxes and other financial records.

  • Most of those rulings were foreseeable, and left conservatives with the same bitter aftertaste they’ve felt before — when Roberts upheld the Affordable Care Act, for example, or blocked a citizenship question from the 2020 census.

The big picture: Roberts is not turning into a liberal. The law either stays put or moves to the right almost every time he is in the majority, even when it’s a majority with the more liberal justices.

  • But he has a lifetime appointment, a strong sense that it’s his duty to preserve public trust in the court, and his own ideas about how to do that.
  • Roberts’ position as the court’s only real potential swing vote gives him the power to dictate not just bottom-line outcomes, but also how the court gets there.

“He’s a conservative minimalist,” said Jonathan Adler, a law professor at Case Western Reserve University and a prominent conservative legal expert.

  • Adler argues that Roberts is guided by an “anti-disruption principle” — that he would prefer not to throw people off of existing programs, or overturn precedents, or strike down entire federal laws, when he can avoid it.
  • That explanation fits with many of Roberts’ controversial rulings — finding a way to uphold the ACA as a tax, stopping the Trump administration from ending DACA (at least temporarily). He takes advantage of workarounds that allow the court to excise one part of a statute without throwing out the whole thing.

Yes, but: There are many areas where Roberts is not particularly reserved — most notably voting rights. He led the court’s rulings striking down the heart of the Voting Rights Act, upholding partisan gerrymandering.

  • He has also consistently voted to end existing affirmative action programs in schools.
  • And even the decision conservatives hated the most — upholding the ACA — was embedded with firmly conservative legal holdings on Congress’ power to regulate commerce, which both sides agree will thwart liberal policies in the future.

Those kinds of inconsistencies are part of the problem, his conservative critics argue. They largely don’t question Roberts’ ideological conservatism, but worry that it’s clouded by what they see as excessive concern for how the court’s rulings will be received.

  • “I believe that he has convinced himself that he has, as chief justice, some kind of obligation to protect the integrity and public credibility of the court, and he believes that this kind of minimalist approach somehow archives that,” said one well-connected conservative legal activist who was granted anonymity to speak candidly.
  • “I think he would have been a very different justice had he been an associate justice as opposed to the chief justice.”

The other side: The court’s most recent abortion case illustrates why liberals aren’t impressed by Roberts’ tacks toward procedural moderation, even when it means they’re on the winning side of a case.

  • This case was nearly identical to one the court decided in 2016, and the court ruled that that precedent tied its hands now. The decision did not expand abortion rights, or change the law at all. Another state can try again with different restrictions, and very well may win.
  • “I think that the rulings we’ve seen from him where he has disappointed conservative observers are instances where he just hasn’t gotten on the train to Crazytown,” said Elizabeth Wydra, the president of the liberal Constitutional Accountability Center.

The bottom line: “To a certain extent I do take comfort in the fact that he wants to ensure that the public views the court as a legitimate institution,” Wydra said. “I’m very grateful they are doing their jobs, but I don’t want to make it seem as if by doing their job they’re taking bold super liberal steps.”

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