It would be difficult to describe more succinctly the chief justice’s vision for the court’s own labors: unity and stability. This, more than any other imperative, defined the justices’ work this term — and is the key to understanding where Roberts seeks to steer the court in the future.
The court made impressive showings of unity in several of its most politically fraught cases. These included 7-to-2 supermajorities to preserve subsidies that reduce insurance companies’ financial risks under the Affordable Care Act; to affirm religious organizations’ exemption from federal contraceptive coverage mandates stemming from ACA regulations; and to protect religious schools’ First Amendment exemption from employment laws regarding their teachers and other ministers.
And, in perhaps the year’s most famous cases, seven-justice supermajorities rejected Trump’s broad assertions of immunity against subpoenas from the House of Representatives and a New York district attorney, while also affirming that Congress and prosecutors must meet high standards of proof to show that their subpoena requests are justified. Given the contentious nature of those cases, the justices could easily have fractured along familiar 5-to-4 lines. Yet Roberts marshaled broad agreement among different mixes of conservative and progressive justices.
Meanwhile, stability was a guiding principle as justices grappled with prior precedents. Roberts joined a majority of justices in striking down Louisiana’s regulations on abortion clinics because of their close similarity to Texas regulations that the court had struck down four years earlier — a decision that Roberts himself had dissented from. The principle of stare decisis, or deferring to legal precedent, is not an “inexorable command,” he conceded. Sometimes, the court is warranted in overturning precedent. But despite the high hopes and political consequences hanging on the outcome, this was no such case.
Roberts also applied precedent for the sake of stability in Seila Law v. Consumer Financial Protection Bureau, which addressed the novel structure of the agency. The agency was set up to be independent, yet lacked the multimember-commission template that independent agencies have long followed. This new approach was too out of keeping with the court’s established precedents for what independent agencies can look like. Roberts, writing for the majority, noted that the “most telling indication” of the CFPB’s “severe constitutional problem” was its “lack of historical precedent.”
The chief justice worked to advance another kind of stability in the administrative state. In a decision blocking the Trump administration’s attempt to roll back the Obama administration’s Deferred Action for Childhood Arrivals immigrant-relief program, Roberts’s opinion for the court did not categorically prohibit changes to the policy. But it did fault the Trump administration for failing to satisfy a basic rule of federal administrative law: Namely, that an agency cannot simply ignore the major real-life consequences implicated by proposed changes in its policies.
That was just the latest in a string of cases in which Roberts’s opinions for the court have created or reiterated doctrines mitigating the wild swings in policy that are increasingly symptomatic of our administrative state. (His decision in last year’s census citizenship question case was another.) This is one of Roberts’s most significant achievements in his 15 years on the court, but it is also one of the least noticed; it has been overshadowed by his famous — or infamous — opinion in NFIB v. Sebelius, affirming Congress’s power to legislate the ACA’s individual mandate.
But his deference to Congress in NFIB is consistent with his concerns about how erratic presidential lawmaking exacerbates instability from one administration to the next. It used to be the case that Congress provided some measure of unity and stability through the work of actual legislation: resolving controversies in a deliberative process that fostered moderation and compromise and enduring written laws. Yet, as Congress has stepped back from these duties, we are governed instead by executive agencies and judges, whose capacity for swift and strident change endangers the constitutional values that Roberts championed in his December letter.
While the outcomes in this term’s cases leave no one totally satisfied, the chief justice’s focus on the court’s institutional role deserves attention — and credit. Nearly a year ago, the court’s term began with a group of Democratic senators filing a brief declaring the court “not well” and warning that it could be “restructured” by Congress. The senators’ ill-tempered threat was ironic. The Supreme Court is the least unwell branch of government, in no small part because of the chief justice’s careful stewardship.