“This Is the Real John Roberts”

What is up with Chief Justice Roberts? Is he moving left? Cowing to political pressure? Trading off liberal and conservative votes? Perhaps it is none-of-the-above, as I explain in this New York Times op-ed. From the beginning:

The chief justice has sided with the Supreme Court’s liberal justices on some of the biggest cases of the term, like decisions to invalidate the Trump administration’s effort to rescind the DACA program and Louisiana’s abortion-provider regulations. In others, he has stuck with the conservatives.

Chief Justice Roberts’s voting pattern certainly fails to conform to a predictable ideological pattern. But there is a pattern nonetheless. He is a conservative justice, but more than anything else, he is a judicial minimalist who seeks to avoid sweeping decisions with disruptive effects.

This has been the hallmark of his jurisprudence since he joined the court in 2005. And while there are significant exceptions (most notably, Shelby County v. Holder, which invalidated a major component of the Voting Rights Act), Chief Justice Roberts’s anti-disruption jurisprudence has become more pronounced the longer he has been on the court.

The article draws and builds upon my analysis of the Chief Justice’s “anti-disruption” approach to statutory interpretation. It is also consistent with some of the themes that emerge from Business and the Roberts Court (Oxford 2016). I will also be expanding on this analysis in a forthcoming essay for the University of Chicago Law Review Online.

I should stress that the aim of this piece is to describe John Roberts’ jurisprudence, not to defend it. There are many reasons one might like or dislike his approach, both as a general matter as well as how it cashes out in particular cases.

My piece concludes:

In his confirmation hearing, Judge Roberts got attention for saying that “judges are like umpires” because they “don’t make the rules, they apply them.” Most commentators dwelled on his suggestion that deciding cases was like calling balls and strikes, but perhaps they missed the real point: “Nobody ever went to a ballgame to see the umpire,” he explained.

In much the same way, Chief Justice Roberts does not like the focus to be on the courts. He would prefer it if the major issues of the day were resolved in Congress or at the ballot box.

This is a noble sentiment, but it may also be a bit outdated and naïve. “There is hardly any political question in the United States that sooner or later does not turn into a judicial question,” observed Alexis de Tocqueville in 1835. This is only more true today. Whether Chief Justice Roberts likes it or not, hard calls in high profile controversies keep coming his way.

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