Federal Courts and Nominations

Roberts court tempers conservative expectations

The Supreme Court under Chief Justice John Roberts in the term that ended Thursday demonstrated a willingness to buck conservative expectations and a preference for shifting the law by increments rather than sweeping pronouncements.

The institutional independence of the Roberts-led court struck notes of stability and caution against a landscape of hyper-partisanship, and tempered conservative notions that President Trump’s nominations had created a fortress on the court.

“The rule of law remains largely intact,” said attorney and legal analyst Brad Moss. “And that is due in no small part to the institutional caution that exemplifies the Roberts court.”

The conservative-majority court delivered wins and losses to both liberals and conservatives alike, though largely without issuing maximalist rulings in either direction. Court watchers attributed this to Roberts’s stewardship.

“If this term proves anything, it is that the Roberts court is now finally John Roberts’s Court,” said Brianne Gorod, chief counsel at the Constitutional Accountability Center, a progressive nonprofit firm which filed briefs in two dozen cases this term.

“That’s why this term included victories and defeats for both sides,” she said. “For example, while Roberts remains very conservative, it was clear this term that he will not invariably accept the arguments made by the Trump administration, no matter how extreme or weak they might be.”

Legal experts say some of Roberts’s influence derived from the fact that he was frequently in the majority in landmark cases.

“This is officially the Roberts court since he was in the majority in a huge percentage of the cases and thus controlled who wrote almost all of the opinions,” said attorney Carter Phillips of the firm Sidley Austin, who frequently argues before the court. “He wrote his fair share of the most important ones.”

Roberts assigned himself to write the opinions in a pair of cases involving efforts to obtain President Trump’s tax returns, which produced something of a mixed bag that gave no clean win to either liberals or conservatives.

Roberts’s split decision ruled against Trump’s efforts to stonewall a New York prosecutor, even as the court shielded a trove of his financial records from Congress. And while the dual opinions did untangle some of the thorniest issues embedded in the disputes, it also left open key questions to be resolved by lower courts. This likely pushed back the timeline of any possible public disclosure of Trump’s records beyond the November election.

What was perhaps more remarkable than Roberts’s vote in the cases was the decision by Trump’s two nominees, Justices Neil Gorsuch and Brett Kavanaugh, to join Roberts and the court’s liberal wing to form a 7-2 majority and validate a grand jury subpoena for Trump’s tax returns.

Roberts was likely heartened that his fellow conservatives’ votes allowed the court to avoid issuing the landmark rulings along ideological lines, which would have given the impression of an unduly politicized outcome. But the votes by Gorsuch and Kavanaugh were also likely to deepen the president’s sense of defeat, as the justices’ hard-won confirmation battles raised expectations that a solid right-wing majority would control the court for the foreseeable future.

The court did hand a resounding victory to conservatives near the end of the term in three cases concerning religious liberty.

In one case, the justices upheld the Trump administration’s expansion of ObamaCare birth control exemptions for employers with religious or moral objections. In another, the court expanded a First Amendment doctrine that insulates religious employers from discrimination suits brought by workers. The court also ruled that religious schools cannot be excluded from state-backed private school scholarship programs.

“The majority of justices on the Supreme Court have increasingly treated religious liberty rights as of greater importance and weight than other fundamental constitutional and civil rights,” said Katherine Franke, a law professor at Columbia University. “When they are asked to adjudicate conflicts between religious liberty and other fundamental rights, they have consistently ruled that religious liberty supersedes other rights.

“They do this by deploying soaring rhetoric about the almost sacred nature of religion in American culture, while using technical, almost antiseptic, reasoning when it comes to rights to equality or reproductive liberty,” added Franke, who serves as faculty director of Columbia University’s Law, Rights, and Religion Project.

For Roberts, a desire for steadiness seemed to weigh heavily on his mind when he penned the 5-4 majority opinion to block the Trump administration from ending an Obama-era program that shields nearly 700,000 young undocumented immigrants from deportation.

The narrow issue before the court in the case was whether the Trump administration’s repeal was legally justified or if it was “arbitrary and capricious,” and thus illegal under the act. Roberts’s opinion emphasized the importance of maintaining predictability in law, referencing the many immigrants who had come to rely on the deportation shield as they planned their futures in the U.S.

Perhaps the biggest challenge this term to both Roberts’s role as the court’s new ideological center and his allegiance to past rulings came when the justices were faced with the court’s first major abortion ruling of the Trump era.

The case was a litmus test for Roberts’s image as an “institutionalist” justice dedicated to honoring prior Supreme Court opinions, especially recent ones.

Roberts ultimately joined the court’s liberal bloc to invalidate Louisiana’s admitting-privilege law. In a concurring opinion, he said his vote was guided by deference to prior rulings, particularly the court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, which struck down a nearly identical Texas law.

The decision in June Medical Services v. Russo was a win for abortion rights advocates who feared the conservative court would break with past rulings to rein in protections that emerged from the landmark decision in Roe v. Wade. But the razor-thin voting margin meant that a woman’s legal right to terminate an unwanted pregnancy was hardly on solid ground.

“Roberts’s incrementalism was on display in the June Medical Services case,” said Barbara McQuade, a law professor at the University of Michigan. “He noted that although he would have decided the case differently on a clean slate, he was bound to follow recent precedent.”

“He seemed to be telegraphing to abortion opponents that they should try again using a different type of restriction where the Court is not squarely bound by precedent,” she said. “Roberts is shrewdly playing the long game, avoiding quick political wins for longer term evolution of the law toward his own worldview.”

While conservatives did notch clear victories in the realm of religion and the administrative state, many analysts believe Roberts’ restrained approach was the reason they did not claim more wins or achieve a more wide-reaching impact.

“Obviously, there was some degree of tempering conservatism in outcomes,” said Mark Tushnet, a professor at Harvard Law School.


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