Curt Levey, president of the Committee for Justice, is a constitutional law attorney.
Roberts’s votes — striking down an abortion law, overturning the Trump administration’s effort to end the DACA program for young immigrants, and expanding the federal ban on employment discrimination to cover gay and transgender workers — mark the death knell for conservative hopes that Justice Brett M. Kavanaugh’s replacement of Kennedy would finally produce a reliably conservative court. Short of adding a sixth GOP appointee to the court, the best conservatives can hope for is that Roberts’s drift stops short of the example set by Justice David Souter, who was trumpeted by advisers to President George H.W. Bush as a “home run” for conservatives but who turned out to be a liberal in disguise.
Roberts has disappointed conservatives before, most notably in his contorted effort to save the Affordable Care Act, when he provided the decisive vote to uphold the law in 2012, and has been doing so more often of late. Last year, he blocked the Trump administration’s effort to add a citizenship question to the census, and in April, he helped thwart a challenge to New York City’s stringent gun-control rules. Roberts’s opinion Tuesday allowing Montana parents to use a state scholarship program to send their children to religious schools improved his conservative scorecard record to one win and four losses on the major culture war issues addressed by the court this term. But it did little to change the perception that the chief justice’s drift away from conservative jurisprudence is accelerating.
Roberts would disagree. He claimed in his concurrence in the abortion case that his hand was forced by a 2016 decision striking down a similar Texas law. But the chief justice’s reverence for precedent is situational. A 2007 case, in which Roberts voted with the court’s majority to uphold a federal ban on partial-birth abortion despite a 2000 precedent striking down a similar Nebraska ban, is just one example.
The chief justice’s invocation of precedent is the latest instance of his wont to take an ostensibly narrow and moderate approach that nonetheless yields a politically correct result sure to win praise in the nation’s leading editorial pages and law schools.
That this tendency arises when politically charged issues come before the court adds to the impression that Roberts is guided by political strategy as much as legal principles. When Roberts sided with the court’s conservatives this week in the Montana case and an important separation of powers case involving the Consumer Financial Protection Bureau, he could be confident the decisions would cause no protests in front of the Supreme Court. The same cannot be said of abortion, guns and immigration.
A conservative approach to the law will not always produce results that are politically conservative. But it eschews judging guided by ideological or political objectives. Roberts appears to be guilty of both.
Roberts is hardly the first Republican appointee to drift in a leftward direction after joining the Supreme Court. Like other wayward GOP picks, Roberts likely has an eye on what the left-leaning Washington milieu and the nation’s academic, media and cultural elites will think of him now and after he’s gone. Recent threats from leading Democrats to pack or otherwise restructure the court he heads may also weigh on Roberts.
The chief justice’s defenders portray his maneuvering as an attempt to protect the Supreme Court’s legitimacy and legacy, rather than something more selfish. But that begs the question of why conservative decisions threaten the court’s legitimacy more than liberal ones. And besides, there’s not much daylight between the reputation of the “Roberts Court” and the reputation of John Roberts.
The decisions of the past few weeks have left a number of prominent conservatives questioning the selection process for Republican Supreme Court nominees and even the conservative legal movement itself. While their angst is understandable, such criticism is unwarranted. Justice Neil M. Gorsuch’s foray into results-oriented “textualism” in the recent gay and transgender rights case notwithstanding, four of the court’s five GOP appointees have an excellent track record of following conservative legal principles. That’s impressive when you consider the near impossibility of predicting how a Supreme Court nominee, if confirmed, will react to life under the bright Washington spotlight.
While conservatives grouse, Democrats and their allies should be celebrating. Sen. Sheldon Whitehouse’s (D-R.I.) dire warning this spring about the “Roberts Five” who have “reliably voted in lockstep . . . to take away civil rights, and to advance the far right social agenda” looks silly in retrospect, as do Senate Minority Leader Charles E. Schumer’s (D-N.Y.) alarm bells about “awful decisions.”
It is time for Democrats to adjust to reality and stop their angry rhetoric about a right-wing Supreme Court that urgently needs to be restructured. That would be a silver lining for conservatives in an otherwise devastating Supreme Court term.