Federal Courts and Nominations

Latest Term Shows John Roberts in Command of Shifting Coalitions

WASHINGTON—The Supreme Court closed a pivotal annual term last week bearing the unmistakable imprint of Chief Justice John Roberts, who embraced the role of institutionalist as he sought to keep the court above nation’s intense partisanship during a time of national upheaval.

Over the course of 55 cases decided this year—involving such politically sensitive issues as access to President Trump’s financial documents, gay rights, workplace discrimination and religious exemptions from providing contraceptive coverage—the chief justice was in the majority in all but two decisions.

Chief Justice Roberts, a George W. Bush appointee who joined the court with a strong conservative résumé, was central to rulings welcomed by the right that expanded religious rights and limited the administrative state. Yet he also found common ground with liberal justices on many of the court’s highest-profile cases, including on abortion, immigration and presidential immunity.

Rather than leading the court to sweeping new pronouncements, the Roberts court often produced incremental rulings grounded in legal procedure and history. The chief justice’s opinions included careful prose giving deference to precedent and institutional stability.

His influence on a closely divided nine-member court came not through leading a static block of justices through each case but in building shifting coalitions. His sway moderated the appetite among his conservative colleagues for more definitive moves to the right, but also brought liberal counterparts to the center, rather than be resigned to the minority.

Taken together, the court’s output reflected the overarching message Chief Justice Roberts has sought to deliver since taking the helm in 2005: The judiciary stands apart from the partisanship that consumes its coequal branches of government, Congress and the presidency.

“He believes very strongly that people should not look at the court and see Republicans and Democrats, that they not see judges as mere partisans,” said Harvard law professor Richard Lazarus, a longtime friend of the chief justice. “It’s an uphill battle, both against the outside forces, and sometimes within the court itself.”

Mr. Lazarus says that goal plays a part in the votes the chief justice casts. In 2016, for instance, he dissented from a 5-4 decision invalidating a Texas law imposing burdensome requirements on abortion providers. But last month, he cast the deciding vote to strike down a similar Louisiana measure, writing that he felt bound to follow the precedent despite his disagreement.

That dynamic was also clear on Thursday, the court’s final day, when the chief justice delivered 7-2 votes brushing back both the legislative and executive branches.

The chief justice wrote both opinions, in which he rebuffed House Democrats for overreaching in their quest to review President Trump’s personal finances but also rejected the Republican president’s claim of absolute immunity from a state prosecutor’s investigation of potential crimes those records might reveal.

“The constraint of precedent distinguishes the judicial ‘method and philosophy from those of the political and legislative process,’” Chief Justice Roberts wrote, citing a 1944 article by a rare justice revered by conservatives and liberals alike, Robert Jackson.

The chief justice, by many measures, is steering a court that is more conservative than when he took it over. Gone are center-right justices such as Sandra Day O’Connor and Anthony Kennedy, who played the pivotal role in many of its biggest decisions. Chief Justice Roberts is now the court’s median justice as well as its formal leader, an alignment the court hadn’t seen in at least 80 years.

The numbers bear out the chief’s decisive role: He was in the majority in nearly every decision this term. He dissented only in an Oklahoma case Thursday recognizing Native American treaty rights and in an April ruling that said defendants can’t be convicted of serious crimes unless jurors are unanimous.

No chief justice has been in the majority this often since Chief Justice Fred Vinson in 1949, according to a statistical analysis published by Adam Feldman on SCOTUSblog, a website about the court.

Some conservatives say the chief justice simply is playing a different kind of politics.

“John Roberts again postures as a Solomon who will save our institutions from political controversy and accountability,” Sen. Tom Cotton (R., Ark.) said last month, after the chief justice, joined by four liberals, extended the life of Deferred Action for Childhood Arrivals, an Obama-era program providing work permits for unauthorized immigrants brought to the U.S. as children. The Trump administration had sought to cancel it. “If the chief justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa and get elected,” Mr. Cotton said.

The ruling didn’t endorse the DACA program or the disputed legal grounds the Obama administration cited when establishing it. Instead, the opinion found administration directives to cancel DACA had flouted the rule-making process prescribed by Congress, a procedural decision that allows officials to take another crack at the plan.

Although he didn’t write the decision, the chief’s hand was evident in the June ruling that extended federal civil-rights protections to LGBT employees: With the authority to assign opinions when he is in the majority, he chose a Trump appointee, Justice Neil Gorsuch, to deliver the 6-3 decision rejecting Trump administration arguments that businesses were free to fire employees because they were gay or transgender.

Despite rulings that have flustered conservatives, many liberals remain leery of the chief justice. While they welcome his occasional deviations from the court’s conservative wing, his alignment with left-leaning justices remains a relatively rare event in a 15-year tenure that has seen the court weaken voting rights, campaign-finance regulations, consumer protection, school integration and labor unions, typically in 5-4 decisions along conservative-liberal lines.

“The fact that Roberts is now sometimes a ‘swing’ vote on this court only shows how conservative the court as a whole really is,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. “Roberts likely agrees with Trump on a slew of policy outcomes,” she said, voting against them only because of the administration’s “completely incompetent or outlandish” arguments.

On a host of issues this term, Chief Justice Roberts delivered a range of 5-4 decisions over liberal dissents.

The conservative wing made it harder to exclude religious schools from government programs, part of the court’s shift away from a strict separation of church and state. It unwound Congress’s effort to shield the Consumer Financial Protection Bureau from White House influence, in the name of preserving executive power and limiting an unaccountable bureaucracy.

And, after Democrats and voter advocates won lower-court orders easing absentee-ballot rules over coronavirus concerns in Wisconsin and Alabama, the court’s conservative majority blocked them, saying such rules shouldn’t be changed in the run-up to an election. The liberal dissent, by Justice Ruth Bader Ginsburg, said the ruling would bring “massive disenfranchisement” of voters who made last-minute absentee-ballot requests.

At other times, the chief’s efforts to build consensus on the court have helped bolster some conservative outcomes, drawing votes from liberal justices Stephen Breyer and Elena Kagan to uphold a Trump administration religious exemption from a mandate requiring employers to include birth control in their health plans and to allow parochial schools to hire and fire teachers as they wish.

When possible, Chief Justice Roberts “doesn’t want 5-to-4. He wants to see 6-to-3 or 7-to-2,” said Mr. Lazarus, whose own recent book on the court is titled “The Rule of Five.”

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