Rule of Law

With wave of major rulings, Roberts and Supreme Court emerge as powerful counterweight to Trump and Congress

“It speaks volumes about the current political moment that Chief Justice Roberts and the court he leads have been seen as having taken bold, surprising steps simply by affirming basic principles of rule of law, and respecting legal text and precedent,” –CAC President Elizabeth Wydra

The Supreme Court ended a momentous term with a trove of decisions more reflective of public opinion than of the nation’s divisive political discourse, and Chief Justice John G. Roberts Jr. emerged as a formidable counterpart to President Trump and the Congress.

“This is one of the most consequential terms for a chief justice in modern history, given his role as the decisive vote in the most important cases and the landmark opinions he wrote,” said former solicitor general Gregory G. Garre, who, like Roberts, was chosen by President George W. Bush.

It was a term, and performance by Roberts, that had those who closely watch the court searching for historical comparisons.

“Roberts is the most powerful chief justice since John Marshall,” said Harvard constitutional law professor Noah Feldman, referring to the fourth chief justice, who established the Supreme Court’s role in the federal government. “We haven’t had a chief who was genuinely the swing vote since Charles Evans Hughes [1930-1941], and even Hughes wasn’t always the swing vote.”

But it wasn’t just Roberts. “I feel like the court returned to first principles this term, back to Marbury v. Madison and the independence of the judiciary,” said Lisa S. Blatt, a Washington lawyer who frequently appears before the Supreme Court.

“They decided to stand up to the executive and to Congress in case after case, defying expectations of court watchers who think the justices act reflexively by the presidents who appoint them.”

Some saw the looming election as a motivating factor — Trump has said he needs another term to truly transform the court into a conservative stronghold; his presumptive challenger, former vice president Joe Biden, has said he’ll name the first African American woman to the bench; and liberal groups are pressing to expand the number of justices.

The court’s five Republican-appointed conservatives and four liberals picked by Democratic presidents may have looked for chances to cross lines and display their independence.

Conservative Justice Neil M. Gorsuch wrote the court’s decision that said federal anti-discrimination law protects LGBTQ workers. Liberal justices Stephen G. Breyer and Elena Kagan joined two decisions important to religious conservatives. Gorsuch and fellow Trump nominee Brett M. Kavanaugh helped form lopsided majorities rejecting the president’s unprecedented claims of immunity from investigation.

Kavanaugh wrote: “In our system of government, as this court has often stated, no one is above the law.”

“The justices, and especially the chief, are braced for the possibility of a contested presidential election this fall, and are probably therefore more than usually concerned not to be seen as in the pocket of one party or another,” said Michael W. McConnell, head of the Stanford Constitutional Law Center and a former Republican-appointed federal judge.

To those who closely watch the court, its decisions appeared to bob and weave: a vote for abortion rights one day, an opinion giving a long-awaited victory to religious schools who want public funding another.

Another way to look at the outcomes this term is through the lens of public opinion.

Conservatives were outraged when Gorsuch and Roberts joined the liberals to find that a 1964 federal law banning discrimination on the basis of sex was broad enough to cover gay, bisexual and transgender workers, even though that surely was not Congress’s intent at the time the law was created.

But about 9 in 10 Americans say such discrimination should be illegal, according to a Kaiser Family Foundation poll.

About 85 percent of the country believes immigrants brought to the United States illegally as children should be allowed to stay, according to a CBS News poll. Both polls were released in June.

Roberts wrote the 5-to-4 decision that stopped the Trump administration from ending the program that protects them, saying the administration’s actions did not comply with the law.

Most of the country thinks the balance of laws allowing and restricting abortion is about right, and the court struck down a Louisiana law seen as the opening shot in convincing the court to rein in abortion protections.

Similarly with gun control. Despite pressure from Second Amendment groups and the Trump administration, and with at least four conservative justices expressing support, the court passed up opportunities to loosen restrictions on permits and overturn bans on certain weapons. That seems to be in line with where the public is.

The court, of course, is to make opinions based on the law, not public opinion. But a term in which the average person thinks “that seems sensible” is the outcome Roberts would like to see, said Feldman.

Garre also made the comparison to Marshall.

“One of the things that made John Marshall such a great chief justice is that he seemed to have a supernatural sense for knowing where the country was, and how far the country was willing to go, at any given point in time,” Garre said. “Time will tell if Chief Justice Roberts has a similar knack. But it seems fair to assume that, at least in some cases, the chief was wary about moving too quickly.”

Jonathan Adler, a law professor at Case Western Reserve University, agrees that Roberts has a “status quo bias.”

“Insofar as people do not look to the courts for dramatic change, I suspect it produces what are, on net, politically popular outcomes, but I think that is a consequence of his method, not the purpose behind it,” Adler said.

Most, but not all, of the decisions that will mark the term moved the court left, or at least toward the middle. But the most notable wins for the right were three cases important to religious groups, about school funding, employment decisions and the Affordable Care Act’s contraceptive requirement.

It is part of a remarkable winning streak at the court supported by Roberts and the conservative justices.

But a term that in October was hailed as a chance for a court reinforced by Trump’s conservatives to begin shifting its jurisprudence became something else.

“By and large, it was a very good term for civil rights and civil liberties,” said David Cole, legal director of the American Civil Liberties Union. Even he seemed surprised.

“If you had predicted, when this term began, that the Supreme Court would extend employment discrimination protections to LGBT individuals, strike down an abortion restriction, reverse Trump’s revocation of protections for ‘dreamers,’ reject Trump’s efforts to bar subpoenas for his tax records, and declare half of Oklahoma to be Indian land, you would have been dismissed as delusional,” Cole said.

Roberts has found that being in the middle brings respect, but not affection. Conservatives were furious with his votes in favor of LGBTQ workers and to strike down the Louisiana abortion law. “What a disappointment Chief Justice John Roberts has turned out to be,” said Penny Nance, president of the conservative Concerned Women for America, after his abortion vote.

But Roberts said he was voting to strike the law only because of a court precedent that eliminated a virtually identical Texas law four years before. Liberals are suspicious that his reasoning in the Louisiana case will make it easier for lower courts to uphold abortion restrictions in other cases.

“It speaks volumes about the current political moment that Chief Justice Roberts and the court he leads have been seen as having taken bold, surprising steps simply by affirming basic principles of rule of law, and respecting legal text and precedent,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.

Roberts, she said, “likely agrees with Trump on a slew of policy outcomes, but the chief will not allow his court to devolve into a reality-show circus … and it’s difficult to understand why conservatives haven’t figured that out yet.”

It will be Roberts’s majority decisions in the Trump financial records cases that will be most remembered from the term. Their eye-of-the-beholder quality led to guessing about who won and lost.

Both sent the cases back for more work in lower courts, which means Trump will likely prevail in his goal to keep his records and tax returns concealed until after November’s election.

But the larger lessons were for the executive branch and Congress.

Regarding congressional subpoenas for the president’s personal records, Roberts lamented that the court had to referee what the political branches usually work out on their own.

He criticized the dragnet approach employed by House committees for their huge records request. He indicated if courts had to settle such disputes, they should not authorize fishing expeditions.

“Without limits on its subpoena powers, Congress could ‘exert an imperious control’ over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared,” Roberts wrote, quoting the Federalist Papers.

But he schooled Trump for the limits the president wanted to place on Congress, and in the accompanying opinion regarding a New York prosecutor’s investigation of Trump, dramatically reminded the president that he was not beyond the touch of law enforcement.

He quoted, who else?

“As Marshall explained, a king is born to power and can ‘do no wrong,’ ” Roberts wrote. “The president, by contrast, is ‘of the people’ and subject to the law.”

Roberts wrote the opinion last term that said the Trump administration had ignored the law in trying to add a citizenship question to the Census form. And he wrote this term’s decision about a similar lack of rule-following in trying to do away with the Deferred Action for Childhood Arrivals (DACA) program.

Liberals were critical of Roberts’s hands-off manner in presiding over Trump’s Senate impeachment trial. Feldman, who was a Democratic witness when the House began the process, reminds that Roberts sat through every minute of the trial.

“He was listening, and no reasonable jurist could have sat through that and thought this is a president who’s interested in the rule of law,” Feldman said. “Maybe that had some tangential effect.”

It is worth remembering that every Supreme Court term is a contained unit, dependent on the issues the justices face. And the personnel matters, too.

A replacement of one of the liberal justices by someone more conservative than Roberts, or vice versa, and the balance would shift. The chief justice would no longer be the member in the middle.