“The highest art is artlessness,” observed Francis Alexander Durivage, a now largely forgotten 19th-century American author: The appearance of acting naturally, without calculation, wins trust and admiration. In contrast, strategic behavior flagrantly intended to advance an agenda often creates public suspicion — which may undermine the aims for which the strategy is undertaken.
Chief Justice John G. Roberts Jr. might consider the Durivage Principle. In a number of important cases in recent years, observers on both left and right have concluded that Roberts has engaged in strategic maneuvering: His goal appears to be to preserve what he takes to be the legitimacy of the Supreme Court, by disproving any suspicion that the justices vote ideologically or otherwise engage in political behavior.
Yet because it is so clear that he is crafting opinions with this end in mind, the chief justice defeats his own aims. Roberts famously said at his confirmation hearing that the role of the justices is just to “call balls and strikes.” No one thinks that is an apt description of his judging. By striving so conspicuously to depoliticize the Supreme Court, he has brought about the very thing he hoped to prevent: No one has done more to politicize the court than the chief justice.
Recently, as Democrats threatened to pack the court if Judge Amy Coney Barrett were confirmed, left-leaning commentators urged Roberts to tack in their direction to “save” the institution. The Washington Post columnist Dana Milbank, for instance, urged Roberts to make sure the court upheld the Affordable Care Act and took a case that would let it affirm Roe v. Wade. Otherwise, he wrote, Roberts and his fellow conservatives “can count on being joined next year by a whole batch of new colleagues.” But it seems the chief justice had already taken such admonitions to heart. The dismaying trend of tactical decisions long predates the concerns about how to fill Ruth Bader Ginsburg’s seat.
An early, important example was the 2012 case National Federation of Independent Business v. Sebelius, in which Roberts provided the decisive vote to uphold the Affordable Care Act and its individual mandate to buy health insurance. In a remarkable exercise in broken-field running, the chief justice (joined by his liberal colleagues) dodged and wove through the legal issues. He first characterized the mandate as a “penalty” rather than a “tax” to address a preliminary issue that would determine whether the lawsuit could proceed. But Roberts then immediately turned around to describe the mandate as a tax “for constitutional purposes” to uphold it as within the powers of Congress. He made this contorted argument over the furious disagreement of the court’s other conservatives, who in a joint opinion accused him of “vast judicial overreaching.”
Credible internal leaks — obtained by Jan Crawford at CBS News — indicated that the chief justice had originally sided with the conservatives but switched his vote after initial deliberations. Crawford’s reporting suggested that he may have been influenced by a spate of commentary (including from President Barack Obama) warning of damage to the court’s legitimacy if the ACA were invalidated, especially by a vote along liberal-conservative lines. Yet the chief justice’s switch, if it was indeed intended to preserve the court’s legitimacy, merely ended up impeaching it among legal conservatives. The Berkeley law professor John Yoo wrote that the ruling was a “big-government disaster,” for instance, and “the greatest expansion of federal power in decades.” In a polarized world, Roberts’s maneuvers to appease one audience often end up infuriating another.
In one of the most controversial cases of 2019, Department of Commerce v. New York — on whether the Trump administration could add a question about citizenship to the census — the chief again wrote a pseudo-Solomonic judgment. On the one hand he declared that the administration enjoyed expansive legal authority to determine how to conduct the decennial census; on the other he condemned its reasons for reinstating a citizenship question as “pretextual.” (The administration said it hoped to use the information in part to enforce the Voting Rights Act. Ordinarily, the court grants the White House great deference in its reasons for pursuing goals clearly within its purview.) As Harvard Law School’s Noah Feldman put it, “Roberts split the baby — again.” Feldman explained that “Roberts’s approach … is to try to craft a middle ground that will make the Supreme Court seem less purely political than it would if he opted to join the conservatives.” That the strategy was so easy to detect and explain meant — paradoxically — that it had created an appearance of judicial politicking and was thus unsuccessful on its own terms.
In June Medical LLC v. Russo this year, the chief justice infuriated conservatives again by providing the fifth vote to overturn a set of abortion restrictions quite similar to ones invalidated a few years earlier by a 5-to-3 majority. At issue in both cases was whether a state — Louisiana this year, Texas in 2016 — could require that a doctor at an abortion clinic have admitting privileges at a nearby hospital. It was especially notable that Roberts had voted in the minority in the Texas case to uphold the restrictions, yet argued this year that the court was now bound by that case’s precedent.
Almost no one, left or right, saw June Medical as a principled stand by Roberts. Liberals thought his concurrence subtly threatened abortion rights. (They claim that it recalibrated the balance struck in the earlier case to remove consideration, when determining whether a law posed a “substantial obstacle” to a woman seeking abortion, of whether it produced any benefit for the woman.) This fear was seemingly — and rapidly — vindicated when lower courts immediately used his reasoning to uphold abortion restrictions. Conservatives, however, thought Roberts’s invocation of precedent was desperately unconvincing and served only to rationalize what appears to be a fear of signing on to more sweeping, and therefore more controversial, pro-life rulings. As one anonymous conservative writer told a Vox reporter after June Medical came down, “The only way to make sense of the Supreme Court’s abortion jurisprudence is to assume it is guided by one principle: ‘Pro-lifers must lose.’ ”
Roberts also wrote the majority opinion this year in Department of Homeland Security v. Regents of the University of California, rejecting the Trump administration’s attempt to rescind the Deferred Action for Childhood Arrivals (DACA) program. Roberts ruled that the Department of Homeland Security’s decision to revoke DACA was “arbitrary and capricious” because, among other reasons, it failed to give adequate consideration to the fact that DACA recipients had come to rely upon the program as they planned their lives. For CNN’s Joan Biskupic, Roberts’s decision was typical of his “pragmatic and political” approach, but conservatives were considerably less pleased. An infuriated Sen. Tom Cotton (R-Ark.) denounced the ruling and invited Roberts “to resign, travel to Iowa, and get elected” if he “believes his political judgment is so exquisite.”
If Roberts’s apostasies have demoralized the right — Vice President Pence flatly called him a “disappointment to conservatives” in August — they have emboldened the left. Far from sating critics of the court, his concessions have only whetted their appetite. His fundamental error has been to think that he could deflect attacks from the left by surrendering to it on some of the most divisive issues. Rather than conciliatory, these gestures have been regarded as a sign of weakness.
Most recently this has manifested in the court-packing push. Ostensibly, the purpose of court-packing is to add enough justices to create a liberal majority — although even if Democrats had won more than 50 Senate seats this year, the proposal was a long shot to pass Congress. Yet court-packing need not actually happen to be effective. Another reason to promote it, which progressives like The Post’s Milbank freely admit, is to pressure the justices, especially Roberts, into continuing to pay the Danegeld. The Supreme Court acquiesced in the 1930s to the threat of court-packing. Why, mused Washington Monthly editor Daniel Block, shouldn’t it do so again?
Republicans’ determination to install Barrett on the Supreme Court a week before a presidential election can be seen as a sign of conservatives’ distrust of the chief justice. Perhaps they would have been more reluctant to shatter all precedent absent their trepidation over what Roberts might do as the swing justice on a 5-to-4 court fortified by a Biden appointee. And Barrett came through: In her first significant decision, Roman Catholic Diocese of Brooklyn v. Cuomo, she voted with the other four conservatives to overturn New York Gov. Andrew M. Cuomo’s on-again, off-again coronavirus restrictions on houses of worship, while Roberts and the three liberals were in the minority.
Barrett’s confirmation was a political gambit designed to thwart a master of political gamesmanship. It was also proof of the ultimate futility of Roberts’s strategy: The appointment of a Supreme Court justice right before a presidential election is just the sort of thing depoliticizing the court ought to avert.
As chief justice of the United States, Roberts’s solicitude for the reputation of both the court he leads and the entire branch of government of which he is the figurative head is understandable. Ultimately, however, his efforts to show that the court is not a partisan institution have provoked the right as much as the left. Two of Roberts’s consequential legacies will probably be the very politicization of the Supreme Court he sought to prevent, and a Republican Party that is likely to turn “No more Robertses!” into a mantra — as it did “No more Souters!” The chief will have no one to blame but himself.