This was always a lofty goal, made paradoxically more difficult by the amassing of a six-justice conservative supermajority. Roberts is a staunch conservative yet, at times, is willing to put ideology aside in the service of what he viewed as the greater good. The primary example of this was his 2012 vote, joining with the liberal justices, to save the Affordable Care Act.
But with the arrival of three new conservatives, Roberts found himself in an unexpected position: potential irrelevance. A chief justice has less authority than the title implies; his power lies mostly in the ability to assign opinion authorship when he is in the majority.
Roberts, outflanked on the right, now has even less sway. The other conservatives, if they chose, could proceed without him. This possibility was made manifest in the 2022 abortion case Dobbs v. Jackson Women’s Health Organization, when Roberts could not secure any takers for his rather contrived compromise position, that the constitutional right to abortion would remain, but that the procedure could be prohibited after 15 weeks.
As I wrote of Roberts in the aftermath of that decision: “He is a chief caught between conflicting imperatives. If he insists on hewing to the go-slow, decide-no-more-than-necessary approach that has been the hallmark of his tenure, he risks appearing weak — and losing what little ability he retains to influence and constrain the conservative majority. If he votes with that majority, as might be his underlying inclination in most cases, he risks contributing to what he has been laboring to prevent: the decline of the institution.”
The numbers don’t tell the story. Nearly half of all cases, 46 percent, were decided unanimously this term, about the same as the previous year, and up dramatically from the 27 percent in the tumultuous 2021-2022 term that witnessed the abortion and gun-rights cases.
In addition, even when the court split, the coalitions were often scrambled. As Adam Feldman of the website Empirical Scotus has reported, in situations where the court divided 6-3, only half (11 of 22) reflected a conservative-liberal split. By contrast, during the 2021 term, nearly three-fourths (14 of 19) of the 6-3 cases were along ideological lines. So, the court is polarized, to be sure, but not as badly this term as the year before.
So why would I suggest that Roberts’s institutionalism project is foundering? It has to do with the content — the radical content — of the decisions the court reached.
Where Roberts might have crafted a narrower ruling, he swung for the fences. Where he could have sought to assemble a cross-ideological coalition, perhaps luring independent-minded Justice Amy Coney Barrett to join with the liberals, he signed up with the most full-throated conservatives. Where he could have avoided overturning precedent, either explicitly or without acknowledgment, he went for it.
This is not where Roberts began. In 2006, at the end of his first term on the court, the new chief set out his vision in a commencement address at Georgetown University Law Center. “If it’s not necessary to decide more to dispose of a case, in my view, it is necessary not to decide more,” Roberts said. He repeated that admonition nearly word for word in Dobbs. That justice was nowhere to be found this term.
The difference was most vividly on display in the presidential immunity case. At oral argument, it seemed that the court might achieve a narrow holding that would carve out a sphere of protection for presidential immunity without giving Donald Trump a get-out-of-jail-free card.
And if unanimity on the question was never a possibility for this polarized court, there were creative ways that Roberts could have assembled differing coalitions to forge a narrower set of holdings. Barrett’s concurring opinion, breaking with the majority on one key point, illustrated this potential. But Roberts not only didn’t seize that opportunity — he gave Trump all he asked for and more.
That wasn’t the only instance. Ruling that Trump could not be disqualified from the Colorado primary ballot because he had engaged in insurrection, the court went out of its way to make clear that the only way to enforce Section 3 of the 14th Amendment is if Congress adopts legislation to that effect.
A unanimous bottom line, yes, but the court’s unsigned opinion drew a scolding from Barrett for going beyond what was needed to decide the case, and even more fury from the liberal justices, who opened with Roberts’s Dobbs admonition against deciding more than necessary.
Likewise, Roberts wrote the decision overturning Chevron v. Natural Resources Defense Council, junking the 40-year-old rule that courts should generally defer to the interpretations of administrative agencies. It could have been even bolder; Roberts refrained from going as far as Justice Clarence Thomas and arguing that the Chevron deference violates the constitutional separation of powers. But it was yet another illustration of the supposed institutionalist’s willingness to jettison precedent. Justice Elena Kagan said the majority had made a “laughingstock” of the principle of stare decisis.
Even when Roberts presided over a course correction to a more moderate outcome, he had to endure concurring opinions. Case in point: United States v. Rahimi, involving whether those subject to domestic violence restraining orders could be prohibited from possessing guns. The 8-1 ruling cut back on the excesses of the court’s earlier decision imposing a strict history and tradition test to determine the constitutionality of gun restrictions.
But it also produced five concurring opinions by six justices. Rahimi was particularly cacophonous but no anomaly: Data compiled by political scientists Lee Epstein, Andrew Martin and Michael Nelson showed that the term that just ended featured the highest number of concurring opinions per case since 1937, as far back as their records reach. That cannot have sat well with Roberts, who has long made clear his distaste for concurrences and his preference that the majority speak with a single voice.
What’s going on here? It’s important to keep in mind that, though Roberts might occupy the middle of the current court, that does not make him a moderate by any means. Protecting presidential power and restraining the administrative state are embedded in his ideological DNA. Going along with the conservative majority suits him just fine.
But he might not have much choice — at least not if he wants to remain in the majority. With five other conservative justices, Roberts might have to go along to stay in the majority. He is chief but not necessarily in control of the outcome.
Or in control of the institution. In the wake of devastating evidence about lavish and unreported gifts received by Thomas and Justice Samuel A. Alito Jr., the court’s response was to issue an ethics code that at most codified and, in fact, managed to water down existing rules. The court’s standing in the public eye has plummeted since the start of Roberts’s tenure, from 56 percent approval in September 2005 to a near-record low 41 percent last September, according to Gallup.
By one measure, this is most decidedly the Roberts court. He was in the majority in an astonishing 97 percent of cases this term, the highest of his tenure and the most of any justice. Indeed, Roberts has been in the majority as much or more than any other chief justice in modern court history, from Earl Warren through Warren E. Burger and William H. Rehnquist.
Is that the point, though? The question must be asked: What profits a chief to be in the majority if he presides over an institution in decline and disrepair?
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