John Roberts, maximalist

As the Roberts Court turns 20, a telling development is that with increasingly rare exceptions, John Roberts himself has abandoned even pretending that he’s some kind of consensus-building minimalist:

But a very different Roberts had already made his presence felt by the end of his second term on the Court—when he wrote for the four-justice plurality in Parents Involved in 2007. When Justice Breyer’s oral dissent in that case pointedly complained that “It is not often in the law that so few have quickly changed so much,” he was directly blaming Roberts and Justice Samuel Alito—who replaced Justice Sandra Day O’Connor in the middle of Roberts’s first term—for the Court’s rapid right-turn on desegregation.

Although Justice Scalia’s dissent was more widely quoted, it was Roberts’s four-justice dissent in Boumediene in 2008 that seemed to suggest the government could give perfunctory “hearings” to Guantánamo detainees and not have to provide any other judicial review. It was Roberts’s 2009 opinion for the Court in NAMUDNO that all-but invited the arguments that led to the Court’s 2013 ruling in Shelby County v. Holder—in which Roberts, in an opinion for a 5-4 majority, eviscerated the Voting Rights Act. It was Roberts who wrote, again, for a 5-4 Court in Rucho in 2019—holding that federal courts lack the tools to entertain constitutional challenges to partisan gerrymandering.

And as I wrote at the end of the October 2023 Term, it was Roberts who turned even more conclusively to the right in the Court’s major cases leading up to the 2024 election—foremost among them in his opinion for the Court in Trump v. United States, but also in lots of other major rulings during that term. Folks will continue to debate how much the immunity decision is directly responsible for Trump’s (re-)election; for his behavior since returning to office in January; or both. What can’t be gainsaid is that the Chief Justice was the decisive figure behind the scenes in that case; even though Justice Amy Coney Barrett also sided with Trump, she would have decided the dispute on far narrower grounds than Roberts and the other four Republican appointees.

I’ll leave to others, including Roberts’s incisive biographer, Joan Biskupic, to attempt to resolve the seeming inconsistency in the two tracks of jurisprudence outlined above—and why John Roberts’s votes seem to reflect profound concerns about the Court as an institution in some cases, but not in so many (especially recently) in which that concern has been most squarely presented. The relevant point for present purposes is that, despite the efforts of many headline writers to the contrary, this unquestionably is the “Roberts Court”—and it has been for quite some time. Roberts could move the Court by voting differently in some of these cases; he has chosen not to. Roberts could speak up more about the unprecedented institutional (and physical) threats to the judiciary; save for one cryptic statement about impeachment, he has chosen not to. Roberts could write separately in cases in which he believes he is obliged to grant emergency relief to the Trump administration but doesn’t wish to condone its (public or litigation) behavior; he has chosen not to. It may be unfair to attribute the work of the Supreme Court from 1946 to 1953 to Fred Vinson, or from 1969 to 1986 to Warren Burger; both men were largely unable to exert meaningful influence over the Court or its direction. It is entirely appropriate, in contrast, to hold Roberts responsible for the position in which the Supreme Court finds itself as he begins his third decade in its center seat.

And that position is an increasingly unstable one. Gallup’s polling data shows popular support for the Court at the lowest levels since they started measuring it. That’s more than just a meaningless statistic or an empty talking point, though; a Court without broad public support is a Court that won’t have the same capital to spend on ensuring that a dissatisfied President complies with rulings against him or enforces rulings to which he objects. Put another way, whatever the source of the Court’s mounting unpopularity, the result is to deprive the justices of a growing amount of the soft power on which their most important—and countermajoritarian—decisions have historically depended. And whatever the reasons for this development, it has happened on John Roberts’s watch.

There are two unique things about the Roberts Court driving its unpopularity. It represents the first time the Court’s inevitable ideological divides have mapped precisely onto partisan divides, and it represents the first time an ideological supermajority had been obtained by the faction that has lost the popular vote in most of the elections that formed the Court. In the short term, given the Senate map the Court’s maximalism carries very little risk to its power. Over the longer term, though, things might be different. “Republicans can govern and Democrats cannot” is not an inherently stable doctrinal equilibrium.