John Roberts can either moderate his views or let himself drift into irrelevance.

John Roberts Can Either Moderate His Views or Let Himself Drift Into Irrelevance

John Roberts Can Either Moderate His Views or Let Himself Drift Into Irrelevance

The law, lawyers, and the court.
Feb. 26 2016 2:37 PM

The Chief Justice’s Biggest Decision

John Roberts can either moderate his views or let himself drift into irrelevance. 

Chief Justice John Roberts.
Chief Justice John Roberts.

Mark Wilson/Getty Images

The chief justice of the United States does not like to dissent. He is also not very good at it. Unlike many of his colleagues—who seem to take intellectual pleasure in ripping apart a majority opinion—John Roberts loathes writing in the minority. When he loses, his opinions bristle with irritation and exasperation, rarely achieving the soaring heights of righteous indignation that mark a great dissent. He comes across as nettled, peeved—too polite and institution-minded to pull off a Scalian polemic, too polished and formal to reach for Justice Elena Kagan’s persuasively chatty colloquialisms.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

During Roberts’ first decade on the high court, none of this has much mattered: Like every chief in history, Roberts has thus far sat comfortably in the majority bloc of his own court. Sure, he has dissented in a few blockbuster cases—marriage equality, Guantanamo detainees—but on almost every other big issue of his day, he’s on the winning side of the 5–4 split. That now seems poised to change.

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If Justice Antonin Scalia’s successor is even slightly to his predecessor’s left, the entire balance of the court will shift, pushing Roberts into a conservative minority. Never in the history of the Supreme Court has a chief justice spent an extended amount of time in dissent, forced into the role of ideological outcast on his own court, as the National Law Journal’s Mike Sacks recently noted

If this does indeed happen, Roberts will have to decide what role he wants to play—whether he should moderate his views to remain in the majority, or let himself drift into irrelevance.

There are plenty of reasons why Roberts, a staunch conservative at heart, might scuttle to the left. The benefits of being in the majority are myriad, especially for a chief justice. Most obviously, the chief is technically the “most senior” justice (even though Roberts is in reality the second youngest member of the court!), and gets to assign the opinion when he votes with the majority. That includes assigning it to himself. Thus, in a case that might otherwise go 5–4 against him, Roberts could choose to join the majority and shape the decision, assigning the opinion to himself and writing it as narrowly as possible. He could also assign the opinion to the second-most conservative member of the majority—likely Anthony Kennedy, or perhaps Stephen Breyer—depriving a Justice Nina Pillard or Paul Watford from penning a broad liberal slam-dunk.

Has Roberts ever made such a canny tactical move before? Not quite, but his previous ideological defections are instructive. During oral arguments for 2012’s Arizona v. United States, the court appeared deadlocked, 4–4, on the constitutionality of Arizona’s infamous immigration laws, with Kagan recused. Rather than allowing a tie, which would almost certainly have resulted in the liberal 9th Circuit invalidating the Arizona laws, Roberts joined Kennedy and the other three liberals, assigning the opinion to Kennedy. The result was a moderate decision that blocked parts of the law but hesitantly permitted its centerpiece to survive.

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Roberts’ vote that same term in the first Obamacare case was a similarly shrewd exercise in ideological flexibility. We now know that Roberts initially wanted to uphold most of the law but to strike down its individual mandate on Commerce Clause grounds, holding that Congress cannot use its authority “to regulate commerce … among the several states” to make people buy insurance. Meanwhile, the conservatives wanted to invalidate the whole law as massive federal overreach, and the liberals wanted to uphold virtually all of it.

In the end, Roberts wriggled his way to a compromise, joining the four liberals in upholding the mandate—but doing so on Spending Clause grounds, by calling it a tax. With this masterstroke, the chief was able to chip away at the federal government’s ability to regulate through the Commerce Clause while avoiding an overtly political anti-Obamacare decision. Unable to broker a deal with the conservatives, he suppressed his obvious aversion to the mandate and sided with the liberals to save it—in an opinion he penned himself, on narrow grounds.

Just last term, Roberts played a similarly savvy game in Williams-Yulee v. The Florida Bar, a judicial campaign speech case. Williams-Yulee involved a Florida rule that forbade judicial candidates from personally soliciting campaign contributions. We don’t yet have an inside account of how the justices first split on Williams-Yulee, but it’s pretty clear—from the final opinions and from oral arguments—that Roberts had a dual agenda. First, he wanted to uphold the measure, an extraordinarily sensible and slight rule designed to prevent judicial panhandling and preserve judicial impartiality. (Roberts can be almost winsomely obsessive about maintaining America’s trust in judges.) Second, he wanted to retain the stringent “strict scrutiny” standard for laws that restrict judicial candidates’ speech, allowing Florida’s rule to survive while reminding states that any suppression of such speech must be narrowly tailored.

The other four conservatives were eager to strike down the Florida rule; the four liberals wanted to uphold it, but almost certainly preferred a lower standard of scrutiny. Ultimately, Roberts split the baby: He sided with the liberals to uphold the measure, but agreed with the conservatives that judicial speech laws must be subject to strict scrutiny. The compromise drew two grumbling opinions from Justices Ruth Bader Ginsburg and Stephen Breyer about the unsuitability of strict scrutiny in the judicial campaign context. But both justices signed onto the bulk of Roberts’ majority opinion, allowing the chief to strike a deft balance between the two blocs.

These outlier votes do not mean that Roberts will race to join a majority. In the 2013 term, he voted with arch-conservative Justice Samuel Alito 93 percent of the time—and with Ginsburg just 71 percent of the time. (That 71 percent figure is very low by Supreme Court standards; most cases aren’t very close.) But these rare defections do show that the chief will occasionally tiptoe out of his comfort zone if doing so lets him shape the majority’s decision. Roberts likes to speak for the court, especially in high-profile cases, and he hates feeling as though institutional power is slipping from his grasp. Moreover, he’s an ineffective and unsatisfying dissenter, often coming across as little more than a poor sport. In one dissent, he posed 40 questions to the majority, which were meant to sound dazzlingly devastating but came across as petty, nitpicky, and confused. And in his notoriously mean-spirited marriage equality dissent, Roberts went out of his way to denigrate same-sex couples, ordering them not to “celebrate the Constitution,” because the decision “had nothing to do with it.”

This is a man who likes to win. What happens when he can’t—or at least can’t win while adhering to his deeply conservative values? Perhaps the chief will consign himself to the role of a dissenter on his own court, mastering the craft and planting seeds for the day when the court’s balance shifts again. Perhaps he will join Alito on the far-right flank, using dissents to mold a new conservative orthodoxy that could come into vogue when the pendulum swings again.

But a bitter retreat would be uncharacteristic of the chief, who is more elastic—and maybe more forgiving—than both his critics and admirers give him credit for. Three terms ago, his more liberal colleagues decided, 5–4, that the Constitution barred mandatory sentences of life without parole for juveniles. Roberts wrote the principal dissent, condemning the decision as a “gratuitous” and implausible “bait and switch.” In January, the court vastly expanded that ruling and applied it retroactively. This time, Roberts didn’t have to pen an outraged dissent. Instead, he joined the majority.