This has always been a lofty goal, but it has been made paradoxically difficult by the six-justice conservative supermajority. Roberts is a staunch conservative, but he is also willing to set aside ideology for the greater good at times, as he did when he voted with the liberal justices to preserve the Obamacare rescue bill in 2012.
But the arrival of three new conservatives has put Roberts in an unexpected position: that of potential irrelevance. The chief justice’s power is less than his title would suggest. His power depends in large part on his ability to designate the author of opinions when he is in the majority.
Cornered by the right, Roberts’ influence is now even weaker, and other conservatives can proceed without him if they choose, a possibility that was made clear in the 2022 abortion cases. Dobbs v. Jackson Women’s Health Organization, Roberts was unable to secure support for a somewhat unnatural compromise that would preserve the constitutional right to abortion but allow abortion to be banned after 15 weeks.
As I wrote about Roberts in the aftermath of that decision, “He is a chief caught between conflicting orders. If he tries to stick to the approach that has characterized his tenure – to go slowly and decide no more than necessary – he risks appearing weak and losing what little ability he has to influence and restrain the conservative majority. If he falls in line with that majority, which may be his underlying tendency in most cases, he risks contributing to the very thing he has worked so hard to prevent: the decline of the institution.”
The numbers don’t tell the whole story. Nearly half of all cases this term, 46%, were decided unanimously, roughly the same as last year and up significantly from 27% in the tumultuous 2021-2022 term, which included abortion and gun rights cases.
Moreover, even when the Supreme Court was divided, the coalition was often disorganized. As Adam Feldman of the website Empirical Scotus reports, in situations where the Court was split 6-3, only half (11 of 22 cases) reflected a conservative-liberal split. In contrast, during the 2021 term, nearly three-quarters (14 of 19) of the 6-3 cases were along ideological lines. So while the Court is certainly polarized, this term is not as bad as last year.
So why do I argue that Roberts’s institutionalist project fails? It has to do with the content of the decisions the Court has handed down: their radical content.
Justice Roberts acted boldly where he could have ruled more narrowly, he courted independent-minded Justice Amy Coney Barrett to the liberal wing, he aligned himself with the most vocal conservatives where he could have formed a cross-ideological coalition, and he avoided overturning precedent, either explicitly or implicitly, where he did so.
This is not the beginning for Justice Roberts. In 2006, after completing his first term on the Supreme Court, the new Chief Justice outlined his vision in a commencement speech at Georgetown University Law Center: “If no more decisions are needed to resolve cases, then in my view, no more decisions are needed,” Justice Roberts said. He framed this warning as: Dobbs. That justice was nowhere to be found this season.
That distinction was most starkly illustrated in the presidential immunity case, where oral arguments suggested the Court might rule to limit the scope of presidential immunity protections without giving Donald Trump an immunity card.
And even if a unanimous decision on this issue was impossible for this polarized Supreme Court, Justice Roberts could have creatively assembled a coalition of dissenting voices to come up with a narrower ruling. Justice Barrett’s concurring opinion, in which she disagreed with the majority on one important point, demonstrated this possibility. But Justice Roberts not only missed that opportunity, he gave the Trump justices everything they wanted and more.
And what’s more, in ruling that Trump could not be disqualified from voting in Colorado’s primary because he participated in the insurrection, the Court went to the trouble of clarifying that the only way to enforce Section 3 of the 14th Amendment is for Congress to adopt a law to that effect.
While certainly a unanimous conclusion, the court’s unsigned opinion drew a scolding from Justice Barrett for going beyond what was necessary to decide the case, and further anger from the liberal justices, starting with Justice Roberts. Dobbs It warns against making more decisions than necessary.
Similarly, Roberts Chevron v. Natural Resources Defense Council; He threw out the 40-year rule that the courts must defer to the executive branch’s interpretations. He could have done more. Roberts, like Justice Clarence Thomas, Chevron Deference violates the constitutional separation of powers. But this is another example of so-called institutionalists’ willingness to abandon precedent. Justice Elena Kagan said the majority had made the principle of stare decisis “a laughing stock.”
Even when Roberts led a course correction to a more moderate outcome, he had to endure disagreements. United States v. Rahimi, The case concerned whether people who are the subject of domestic violence restraining orders could be banned from owning guns. The 8-1 decision curtailed the overreach of previous court decisions that imposed strict history and tradition tests to determine the constitutionality of gun restrictions.
However, five concurring opinions from six justices were also issued. Rahimi Particularly tumultuous, but not unusual: According to data compiled by political scientists Lee Epstein, Andrew Martin, and Michael Nelson, the just-ended term saw the most concurring opinions per case in any administration for which they have kept records since 1937. This must have been hard to stomach for Roberts, who has long made clear that he dislikes concurring opinions and prefers the majority to speak with one voice.
What is going on? It is important to remember that while Roberts is the current centrist of the Supreme Court, that does not make him a moderate. Protecting presidential power and restraining the executive state is in his ideological DNA. It suits him to go along with the conservative majority.
But Roberts may not have much of a choice, at least not if he wants to stay in the majority. With the other five conservative justices, Roberts may be forced to go along with it to stay in the majority. Although he is chief justice, he doesn’t necessarily have control over the outcome.
Or are they taking control of the Supreme Court? In the wake of shocking evidence of large, unreported gifts received by Justices Thomas and Samuel A. Alito Jr., the court issued an ethics code that merely codified, but effectively watered down, existing rules. According to Gallup, the court’s public approval rating has plummeted since the start of Justice Roberts’ term, from 56 percent approval in September 2005 to a near-record low of 41 percent last September.
By one measure, this is clearly the Roberts Court. He has held the majority in an astonishing 97 percent of cases this term, the highest of his tenure and more than any other justice. In fact, Roberts has held more majorities than any other chief justice in the history of the modern court, from Earl Warren to Warren E. Burger to William H. Rehnquist.
But is that the point? The question to ask is, what is the benefit of having a majority of chiefs presiding over an institution that is in decline and decay?
