Signs of Roberts’ waning influence abound. During the Supreme Court’s tenure that ended last July, (more conservative) Justice Brett Kavanaugh was in the majority in 97 percent of all cases and 95 percent of split cases; the chief managed only 91 percent and 84 percent respectively. Kavanaugh also voiced the decisive vote in denying a nationwide injunction against the Center for Disease Control’s moratorium on evictions in July. Robert’s vote to let the California and New York Covid regulations applied to churches survive was in dissent. He was once again dominated by his five more conservative peers, including Kavanaugh.
But neither should we overstate the distance between the Chief Justice’s favorite results and those of his Conservative colleagues. Roberts has already clearly expressed his strong antipathy for the right to abortion. In a pivotal case in 2020, he voted to strike down a Louisiana law imposing punitive charges on abortion providers, but at the same time, made it clear that state legislatures had “broad discretion” to regulate abortion without hesitation through federal courts. His language was widely seen as an invitation to triumph Roe vs. Wade indirectly, and the court will have that chance when it begins to consider an abortion ban in Mississippi in the fall.
The Chief is also at the forefront of many other right-wing shifts in case law. Last year he drafted an advisory severely restricting the ability of states to withhold funding for religious schools. A year earlier he had drafted a judgment unleashing unconstrained gerrymandered supporters. And in 2012, he wrote the ruling overturning a key piece of voting rights law – opening the doors to recent restrictive voting measures in 17 states (and it continues).
So it’s not the direction of legal change, but its speed and style, that separates Roberts from his fellow Conservatives. The chief, it seems, holds legal protocols and rituals in much higher regard. It is important to him that this jurisdiction is widely seen as acting in a deliberative and legalistic manner, according to the forms and rules set by law and with a certain respect for existing judgments – even those with which he disagrees. In 2012, he angered his Tory allies by backing Obamacare, but likely helped protect the court’s credibility with the public. I consider him a Lawyer – someone for whom the forms and intricacies of the legal process matter somewhat – although seldom enough to prevent it from achieving preferred conservative outcomes.
So when Roberts cast a decisive vote at odds with his fellow Conservatives, in cases involving the DACA immigration program and the 2020 census, he explained his objections in terms of process, not outcome. He carefully left avenues open for government actors to achieve a conservative result – if they respected the forms and intricacies of the legal process.
Legitimacy was therefore for Roberts a means to an end – conservative governance. While he deftly wielded institutional gravity to avoid hostile congressional actions, he also gave Republicans tools for entrenchment by degrading the Voting Rights Act, enforcing voter identification laws. and preventing the reform of redistribution.
The post-Roberts court will likely be even more aggressive in consolidating conservative governance. But he will advance that end by entrenching his partisan allies beyond electoral challenges while renouncing Roberts’ pursuit of legalistic legitimacy.
The biggest differences between the Chief Justice and other Conservative justices will occur in the so-called “shadow case” of cases decided without a full briefing or oral argument. Precisely because these issues unfold on a compressed timescale, without public deliberation or full briefing, they can be an affront to the leader’s legalistic urges. Obviously, that’s not as much of a concern for other conservatives – at least when they like the ultimate end result enough.
When the same legal question arises on both the shadow file and the court file, the leader is often able to find a compromise on the latter, if not the former. For example, the leader disagrees with the results achieved by his fellow Conservatives in religious freedom challenges against the New York and California Covid rules, both on the shadow register. But when the same basic First Amendment issue was presented in a later religious freedom case regarding the Philadelphia foster care program on the merits of the case, he was successful in persuading many to join him in a more narrow decision. – although it lays the foundations for an aggressive religious right to discriminate.
In the vast majority of cases, therefore, the gap between the leader and his Conservative colleagues will not change the last rest of constitutional law. So expect conservative rulings in all of this mandate’s successful cases on abortion, Second Amendment, religious freedom and state secrets – but also expect Roberts to exert some moderating influence at times. at key times on the bottom file. The judicial tide will be red, but not always scarlet.
The Chief Justice’s influence will palpably and rapidly diminish, however, if states led by the GOP and other groups follow Texas’ lead of rejecting the niceties of precedent and rushing to install aggressively conservative results. which the leader would prefer to reach more slowly. All it takes to open up the leader’s fragile grip on the tribunal, and to completely bury “the Roberts tribunals”, are sufficiently polarized state legislatures and militant allies too impatient to allow the slower, more legalistic process to unfold. that Roberts would follow.
As a result, perhaps the most significant area of conflict to come to the bench, and the one most likely to further undermine the leader’s leadership, is the inevitable wave of election-related affairs that will strike next year at the approaching 2022 and elections of 2024.
It’s easy to focus on the court’s decision not to intervene during the 2020 race and assume the post-Roberts court wouldn’t accept an inevitably partisan invitation to thwart a Democratic vote count. But that would be to forget that just days before the November election, Judge Samuel Alito – joined by Justices Neil Gorsuch and Clarence Thomas – proposed exactly that in Pennsylvania. Had the ballot count been slightly closer, it is more than conceivable that a “shadow case” order arresting Pennsylvania election workers would have been issued.
The legal basis for their threat – the idea that Article I, Section IV and Article II, Section 1 of the Constitution gives state legislatures a monopoly over everything electoral except courts and tribunals. state election commissions – featured heavily in the arguments of the Trump campaign. to undo the 2020 result. Rooted in one of the opinions of the infamous Bush vs. Gore In this case, this argument gives the Supreme Court an unlimited license to revoke the actions of state officials and judges who inevitably end up holding a field election on the grounds that the state legislature would have done otherwise. And it is perfectly suited to emergency movements of the phantom backrest.
So expect the doctrine of the “independent legislature” and other creative readings of the Constitution to flourish in the shadow role as election season draws near. It is these cases – where the court is most likely to become a naked instrument of partisan entrenchment – that will really test Roberts’ leadership. Like Barnum, the leader is not yet dead. And, at least for the sake of American democracy, we should all hope that it still has some life left.