Roberts, No Centrist, Is in the Supreme Court’s Middle

In the last 15 years, the U.S. Supreme Court has had three swing justices, those most likely to deliver the decisive vote when the other eight are deadlocked. They are Sandra Day O’Connor, Anthony Kennedy and (now) John Roberts. They’re very different from one another, and there’s never been one quite like Roberts.

A swing justice has outsized influence. Whether the issue before the court involves voting rights, free speech, presidential power or abortion, the swing justice is the person to whom lawyers most direct their attention.

O’Connor, Kennedy and Roberts are hardly the only swing justices in the nation’s history. In the second half of the 20th century, other examples include Potter Stewart, Byron White, Lewis Powell Jr. and John Paul Stevens.

While it is reasonable to say that swing justices are “in the middle,” it’s too simple to describe them as “moderates.” Swing justices have embraced dramatically different approaches to constitutional law.

O’Connor, who joined the court in 1981, was a judicial minimalist. She attended carefully to the facts of particular disputes. She distrusted abstract theories about freedom and equality, and she liked to avoid sweeping rulings. With respect to free speech, for example, she favored narrow, case-by-case judgments, which would not reorient constitutional law in major ways.

Because of her attention to detail and her openness to competing points of view, she often cast the decisive vote in important cases. She spoke quietly, but carried a big stick.

Kennedy joined O’Connor on the court in 1988, but became the swing justice only when O’Connor left in 2006. He, too, carried a big stick, but he didn’t speak quietly. He was the author of large, sweeping opinions, including two of the most important in decades, striking down all bans on same-sex marriage and broadly protecting the rights of corporations to spend money on political campaigns.

Sometimes Kennedy embraced minimalism, but on important occasions, he favored a heroic role for the federal judiciary, potentially transforming the whole fabric of constitutional law and American society. What made him a swing justice was that he wasn’t easy to predict, and he couldn’t be neatly categorized in ideological terms.

Protecting the rights of gays and lesbians, he could appall conservatives. Protecting the rights of corporations, he could outrage progressives.

Kennedy left the Court in 2018, to be replaced by Brett Kavanaugh, and since that time, Roberts has emerged as the swing justice.

By most measures, Roberts, who joined the court as chief justice in 2005, is unquestionably to the right of both O’Connor and Kennedy. His votes are more likely to be stereotypically conservative.

Roberts shares O’Connor’s minimalist inclinations; he prefers narrow rather than heroic rulings. But there is a more fundamental point. More than either O’Connor or Kennedy, Roberts is an institutionalist. He is closely attuned to the Supreme Court’s role in the constitutional order. He cherishes its independence. He is keenly alert to the potential difficulties if the court appears to be lining up, in a consistent way, with one or another political side.

He cares about precedent. That’s one reason that he refused, in a recent abortion case that invalidated strict licensing requirements for providers in Louisiana, to vote to overrule a case from which he himself had vigorously dissented just four years ago.

Quoting Alexander Hamilton, he wrote, “Adherence to precedent is necessary to ‘avoid an arbitrary discretion in the courts.’”

Roberts’s concern about “arbitrary discretion” is undoubtedly connected to the fact that he is the chief justice, attempting to steer the court in an unusually challenging time. Hence his unusual rebuke of President Donald Trump in 2018 for referring to a federal judge as an “Obama judge”:

We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.

Roberts is willing to walk the walk. He cast the decisive vote to strike down the Trump administration’s attempt to revoke President Barack Obama’s Deferred Action for Childhood Arrivals program, which barred deportation of many resident non-citizens brought to the U.S. as children. It is crude and unfair to say that he sided with the liberals. His opinion for the court applied time-honored principles of administrative law, calling for reasoned decision-making.

In voting to strike down the administration’s effort to add a citizenship question to the 2020 U.S. census, Roberts pointed to serious irregularities within the executive branch, suggesting that its attempt to defend its decision by reference to the Voting Rights Act was a mere “pretext.”

It’s wrong to say that Roberts is (or has become) a moderate, or that he is betraying conservatives. His commitment to precedent, and his willingness to scrutinize executive branch decisions, are likely to create a lot of trouble for future Democratic administrations.

Roberts is often a minimalist, but much more than that, he is an institutionalist, fiercely protective of the court’s independent role. He is emerging as a unique figure in the court’s long history.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

©2020 Bloomberg L.P.

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