John Roberts Is Just Who the Supreme Court Needed
The chief justice has worked to persuade his colleagues to put institutional legitimacy above partisanship.
Updated at 12:56 p.m. ET on July 14, 2020.
In 2007, at the end of his first term on the Supreme Court, Chief Justice John Roberts told me in an interview for this magazine that he would make it his highest priority to protect the Court’s institutional legitimacy. “There ought to be some sense of some stability,” he said, “if the government is not going to polarize completely. It’s a high priority to keep any kind of partisan divide out of the judiciary as well.” Roberts said he would try to persuade his colleagues to put institutional legitimacy first by encouraging them to converge around narrow, bipartisan decisions to avoid 5–4 partisan splits. “I think the Court is also ripe for a similar refocus on functioning as an institution,” Roberts emphasized, “because if it doesn’t it’s going to lose its credibility and legitimacy.”
In the Supreme Court term that ended on Thursday, Roberts decisively and impressively achieved his goal. At a time of greater partisan conflict between the president and Congress than any time since the Civil War, as Americans are questioning the legitimacy of all three branches of the federal government, Roberts worked to ensure that the Supreme Court can be embraced by citizens of different perspectives as a neutral arbiter, guided by law rather than politics. He helped persuade all but two of his colleagues to unite in two decisions ruling against President Donald Trump’s efforts to fight subpoenas from Congress and the New York County district attorney. He also joined 7–2 majorities in two cases involving religious liberties and a 6–3 majority in a historic decision extending federal antidiscrimination protections to LGBTQ individuals. And, in cases where 5–4 splits were unavoidable, he joined the more liberal justices in voting to maintain an important precedent protecting abortion rights and in forbidding the president to repeal the “Dreamers” program without following regular administrative procedures. During this term, Roberts also presided neutrally over a presidential impeachment trial, and criticized both Trump and Senator Charles Schumer of New York for attacking judges in partisan terms.
In the process, he became, as the Washington University law professor Lee Epstein told The New York Times, the most powerful chief justice since Charles Evans Hughes in 1937. By the end of the term, the Court had avoided 5–4 splits in many of the hot-button cases, and Roberts was with the majority in all of the 5–4 decisions but one. He achieved the goal he set for himself at the beginning of this tenure: resisting what he called the “personalization of judicial politics” by converging around legally narrow, bipartisan decisions, in the tradition of his own hero, Chief Justice John Marshall.
To understand the success of Roberts’s strategic vision, let’s begin with what he said he would try to achieve in 2007. In our interview, he expressed concern that a public focus on the number of 5–4 decisions would undermine public confidence in a nonpartisan judiciary, leading to “a steady wasting away of the notion of the rule of law.” Pointing out that the officials in Congress and the White House were functioning over time more as polarized individuals than as members of deliberative institutions, he said, “I think it’s bad, long-term, if people identify the rule of law with how individual justices vote.” In reaction to this personalization, Roberts said he would emphasize what he called the “team dynamic” to his colleagues: that it was in their institutional interest to join narrow, unanimous decisions rather than broad 5–4 decisions. “You do have to put people in a situation where they will appreciate, from their own point of view, having the Court acquire more legitimacy, credibility, that they will benefit from the shared commitment to unanimity in a way that they wouldn’t otherwise,” he said.
Roberts repeatedly achieved near unanimity this year by persuading his liberal and conservative colleagues to agree to narrow holdings. Consider Roberts’s opinions for the Court in the two subpoena cases. Trump v. Vance, significantly, begins and ends with an account of how Chief Justice Marshall ordered his rival President Thomas Jefferson to obey a subpoena in the Aaron Burr trial because of his conviction that the president does not “stand exempt from the general provisions of the Constitution.” The Court unanimously agreed with Roberts’s conclusion that the president is not absolutely immune from a state criminal subpoena, but disagreed over the proper standard that courts should apply in evaluating subpoenas to the president. The four liberal justices joined Roberts’s decision that the president does not need heightened protection against state subpoenas to fulfill his duties. Justices Neil Gorsuch and Brett Kavanaugh concurred, but would have required the prosecutor to show a specific need for the information; Justices Samuel Alito and Clarence Thomas dissented, and would have required an even higher standard.
In Trump v. Mazars, six justices joined Roberts in creating a new test for how courts should evaluate congressional subpoenas for a president’s personal papers, in this case financial records; only Alito and Thomas, in dissent, would have held that Congress had no power to issue the subpoenas. In both Vance and Mazars, Roberts rejected the broad positions of the Trump administration and its investigators, and persuaded a majority of the court to accept a narrower, intermediate position. In doing so, Roberts successfully balanced the interests of the president, Congress, and the courts, while avoiding making the Court a partisan friend or foe of the president, just as Marshall did in his conflicts with Jefferson.
Although complete unanimity eluded Roberts in the subpoena cases, the Court achieved it in another politically charged decision, Chiafalo v. Washington, in which Justice Elena Kagan held for all nine justices that states may penalize members of the Electoral College for failing to vote for the presidential candidates to whom they’ve been pledged. The case represents the clearest victory for Roberts’s vision that the Court should try to be unanimous in politically charged cases to preserve its institutional independence. As Roberts told me, Marshall could “have got on the Court and said, ‘I’m the last hope of the Federalists; we’re out of Congress; we’re out of the White House; and I’m going to pursue that agenda here.’ And he would have not only damaged the Court but could have smothered it in the cradle. But instead he said, ‘No, this is my home now, this is the Court, and we’re going to operate as a Court, and that’s important to me,’ and as a result he made the Court the institution that it has become.”
In two 7–2 religious-liberty cases, two liberal justices were willing to join the conservatives in decisions that were narrower than some of the conservatives would have preferred. In Little Sisters of the Poor, Justice Thomas wrote for the Court that the Departments of Health and Human Services, Labor, and the Treasury had the authority under the Affordable Care Act to exempt employers with sincere religious or moral objections from providing contraceptive coverage. Justices Kagan and Stephen Breyer concurred in the judgment but wrote separately to clarify that they thought the regulations might later be found to violate the Administrative Procedure Act’s requirement of reasoned decision making. In Our Lady of Guadalupe School, Justice Alito wrote for the Court that the “ministerial exception,” which excuses religious institutions from following antidiscrimination laws, applied not only to ministers but also to teachers in parochial schools. Only Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented.
When we spoke years ago, Roberts emphasized that he was more interested in institutional legitimacy than methodological purity. He observed that the less successful chief justices—such as Harlan Fiske Stone, the former dean of Columbia Law School‚ who was chief from 1941 to 1946—had approached the job more like law professors than as leaders of collegial courts. “A justice is not like a law professor, who might say, ‘This is my theory … and this is what I’m going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area,’” he explained. Instead of nine justices moving in nine separate directions, Roberts said, “it would be good to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record.”
Roberts’s focus on teamwork rather than methodological purity was obvious in the landmark 6–3 Bostock decision, in which he and the liberal justices joined Gorsuch’s textualist opinion holding that Title VII of the Civil Rights Act of 1964, which forbids discrimination “because of sex,” includes discrimination on the basis of sexual orientation or transgender status. Roberts himself is not always a textualist. In King v. Burwell, where Roberts held for a 6–3 Court that the tax credits of the ACA are available to individuals in states that have a federal exchange, Roberts emphasized that “oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” But in both cases, avoiding a 5–4 partisan split on contested questions of national politics was more important than rigid methodological consistency.
In the same spirit, Roberts in our interview praised his predecessor, William Rehnquist, for joining decisions as chief that he may have objected to as an associate justice when the legitimacy of the Court required it. “I think there’s no doubt that he changed; as associate justice and chief, he became naturally more concerned about the function of the institution,” Roberts told me. “He had settled views on Miranda, yet he’s the one who appreciates that it had become part of the law, that it would do more harm to uproot it, and he wrote that opinion as chief for the good of the institution.”
Roberts showed the same concern when he concurred with the liberal justices in the 5–4 June Medical Services decision, refusing to allow Louisiana to require that all doctors who perform abortions have admitting privileges at local hospitals. Although Roberts had been in dissent in a nearly identical case arising from Texas in 2016, he stressed the importance of avoiding the perception that the Court would overturn precedents based on nothing more than a change in personnel. Quoting Justice Robert H. Jackson, he wrote: “The constraint of precedent distinguishes the judicial method and philosophy from those of the political and legislative process.” Roberts also expressed a concern for precedent in one of his only dissents of the term, when he joined Justices Alito and Kagan in objecting to the Court’s Ramos decision holding that the Sixth Amendment right to a jury trial requires unanimous verdicts to convict defendants of serious offenses.
When Roberts joined the four liberals in holding that Trump’s executive order repealing the Deferred Action for Childhood Arrivals program violated the Administrative Procedure Act, many observers recalled a similar decision last year, in which he joined the same five-justice coalition in holding that the Trump administration couldn’t add a citizenship question to the Census without following proper administrative procedures. In both cases, he underscored the “reliance interests” he had invoked in the June Medical abortion case. To avoid a perception of pure partisanship, he said, agencies of government are “required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns.”
Roberts also joined the liberals in voting to deny injunctive relief in South Bay United Pentecostal Church v. Gavin Newsom, in which the church challenged the California governor’s order limiting capacity in places of worship to prevent spreading the coronavirus. Of the five justices denying the injunction without comment, Roberts was the only one to write separately, highlighting his understanding of the judiciary’s limited role. “Our Constitution principally entrusts ‘The safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect,’” he wrote, adding that they “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
Roberts also kept the judiciary out of controversies by managing the “shadow docket”—that is, the cases the Supreme Court decides not to hear—to avoid entangling the Court in partisan politics. Over Justices Thomas and Kavanaugh's dissents, the Court ruled that it would not hear a case involving Second Amendment gun rights. The Court also voted to refuse to hear a case on qualified immunity for police officers, with Thomas dissenting.* Because four votes are required for the Court to hear a case, the conservative justices, unsure of how Roberts would ultimately vote, may well have decided not to take the risk.
Roberts was not successful in keeping the Court out of politics completely. His most notable failure was the 5–4 decision with the memorable name Republican National Committee v. Democratic National Committee, in which he wrote for the five conservative justices that a Wisconsin court could not order election officials to count absentee ballots received after Election Day. Invoking the COVID-19 crisis, Justice Ginsburg wrote in dissent that “the Court’s suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind.” In a more recent order, the Supreme Court, by the same margin, said Alabama did not have to loosen voting restrictions as a district judge had ordered, in light of the pandemic. Both decisions were based on the principle that courts should generally avoid changing the rules right before an election. Still, all nine justices agreed not to reinstate a lower court’s decision to require Texas to let all eligible voters cast a ballot by mail—at least for now. Disputes over absentee ballots in the months leading up to the presidential election may test Roberts’s determination to keep the courts above partisan politics like no case since Bush v. Gore. His ability to avoid involving the Court in resolving a close election will be the ultimate test of the success of his vision.
Why was Roberts more successful in fulfilling his vision in 2020 than in previous years? When we spoke at the end of his first term, he emphasized that his colleagues’ willingness to embrace institutional legitimacy as a priority would determine how he fared. He suggested that the greatest obstacle would be Anthony Kennedy, then the swing justice, who was more inclined to sweeping, principled decisions than to narrow, pragmatic ones. Now that Roberts, rather than Kennedy, is the median and swing justice, he has more flexibility in drafting decisions that his liberal and conservative colleagues are more likely to join. Moreover, all of the justices are clearly aware of the attacks on the legitimacy of the courts in general and the Supreme Court in particular—from Trump assailing “Obama judges” to frustrated progressives threatening court packing. In this fragile time for American democracy, Roberts’s determination to learn the lessons of history—he noted when we spoke that most chief justices have been failures—has been impressively vindicated. During our interview, Roberts approvingly quoted the observation of Chief Justice Hughes that “Marshall’s preeminence was due to the fact that he was John Marshall.” In following the examples of Marshall and Hughes, Roberts is establishing his own preeminence by working with his colleagues to maintain the Court’s bipartisan legitimacy at a time when the other branches have lost their own.
*This article previously misstated which justices dissented from the Supreme Court's decision not to hear a case on gun rights.