John Roberts has changed. Consider the chief justice’s voting record. From 2005—the year he was appointed—until 2012—the year of the first Affordable Care Act decision—Roberts was a reliable vote on the court’s staunch conservative wing. In controversies from abortion to campaign finance to guns, Roberts sided with Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy. The 2012 health care case was only the second time Roberts had ever voted with the liberal side of the court in a 5–4 decision.* Lately, however, we’re seeing a very different Roberts. Last term Roberts surprised many by breaking left on a few major cases. And so far this term, Roberts has voted with Stephen Breyer (90 percent), Ruth Bader Ginsburg (85 percent), and Sonia Sotomayor (83 percent) more often than he has joined Thomas (66 percent), Kennedy (74 percent), and Alito (77 percent). And that isn’t just on minor cases. He’s recently sided with the liberals in cases on issues that typically divide the court along ideological lines, including campaign finance and anti-discrimination law.
Little wonder then that some conservatives ask if Roberts is “going wobbly.” While court watchers have recognized and speculated over Roberts’ shift to the left, the reason for the shift remains obscure. Beyond amorphous notions of Roberts’ special concerns for his “legacy” or the court’s “legitimacy,” what accounts for Roberts’ recent move to moderation? Only he truly knows the answer, but one possibility is that Roberts has learned something from his time on the bench. In particular, his transformation might have been influenced by two specific cases: one high-profile, the other largely forgotten.
Few Supreme Court decisions have sparked more controversy and subjected the court to more widespread criticism than its 2010 ruling in the campaign finance reform case Citizens United. The court’s 5–4 decision, with Roberts in the majority, held that corporations and unions have a First Amendment right to spend unlimited amounts of money to influence elections. The decision put the court at the very epicenter of political debate—precisely the place Roberts said he wanted to avoid during his confirmation hearings. The ruling, which many believe benefits the GOP, has been seen as partisan; almost no one sees Citizens United as simply a matter of balls and strikes. It was also anything but the kind of small, incremental steps Roberts claimed to prefer when altering existing doctrine.
If one wanted an explanation for why Roberts changed his vote in the first Affordable Care Act case in 2012, Citizens United would be a good place to start. According to Jeffrey Toobin, Citizens United was “orchestrated” by Roberts. Yet the opposite is likely true. Roberts preferred a narrow ruling in Citizens United but was persuaded by his conservative colleagues to join a very broad, precedent-reversing decision that radically shifted the terrain of campaign finance law. The country, across political lines, was angry. And two years later the Affordable Care Act case looked like a repeat performance: The chief justice sought a narrow ruling voiding the individual mandate while his conservative colleagues pushed for a more aggressive ruling that would overturn the whole law, including the hundreds of provisions on issues that didn’t relate in any way to the constitutionality of the mandate. As reporting at the time revealed, on the eve of a presidential election that promised to make the court’s decision the biggest issue in the campaign, Roberts seemingly balked. He wasn’t following his friends down the rabbit hole again.
Roberts may also have learned a similar, valuable lesson from a far less familiar ruling: House v. Bell, from Roberts’ very first term on the court. Few remember the facts of this case—Paul House, a man sentenced to death, won the right to file a habeas petition in federal court—but you can bet Roberts will never forget it. Joined by Scalia and Thomas, Roberts wrote a partial dissent that contemptuously dismissed House’s claims of innocence.* To House’s contention that his scratches and bruises were from his construction work and a cat’s claws, Roberts derisively replied, “Scratches from a cat, indeed.” Several years later, however, prosecutors dropped all charges against House, who was exonerated by DNA evidence.
House is the type of case that should cause any justice to second-guess his or her own intuitions and judgments. Certainly it offered Roberts an object lesson in the perils of judicial overconfidence: Don’t be so certain you are right even when you are certain you are right. On some issues, like voting rights, Roberts’ views may be so longstanding and firmly held as to be immune to moderation. And some of his seemingly liberal votes may be strategic, part of what legal scholar and Slate contributor Richard Hasen calls Roberts’ “long game.” Yet somehow the spirit of compromise, if not the ghost of Paul House, haunts the chief justice’s chambers.
No one doubts that Roberts leans right jurisprudentially. Yet over the past two terms, we’ve seen evidence that Roberts has become a bit more circumspect of his own jurisprudential views and perhaps more wary of those of his conservative colleagues. Carrie Severino of the right-leaning Judicial Crisis Network says, “There certainly seems like a more consistent pattern on the part of Scalia, Thomas, and Alito of being really conservative to the core.” In this way, we might see the conservative wing of the court in a similar light as the intramural wars plaguing the Republican party in general: Mainstream conservatives find themselves trying to fight off the more radical, burn-down-the-house Tea Partiers. Some on the court seem less interested in incremental steps than infernos.
Of course, there are two major decisions yet to come this term that will color any analysis of Roberts for years, if not decades, to come: King v. Burwell, on the availability of subsidies on the federally created health care exchanges, and Obergefell v. Hodges, on the right of same-sex couples to marry. No one outside the court knows how those cases will come out, but don’t be surprised if once again Roberts defects from the Scalia/Thomas/Alito wing. By now he’s learned to watch out for where his friends might take him.
Correction, June 26, 2015: This article originally misstated that the 2012 health care case was the first time Roberts had ever voted with the liberal side of the court in a 5–4 decision. It was the second time. This article originally stated that Scalia, Thomas, and Alito joined Roberts in a partial dissent in House v. Bell. Alito did not participate in that decision. (Return.)
