The Supreme Court Is Still Capable of Shocking the Nation
(Bloomberg Opinion) -- The U.S. Supreme Court term that ended last week was a blockbuster, with landmark decisions on abortion, LGBTQ rights, presidential power, immigration, religious liberty and American Indian law. No term in almost two decades comes close to having issued so many crucial decisions —with long-term consequences for millions of Americans.
The drama of the term was enhanced by what you might think of as coming-out events for two justices: chosen transformations that change the way each presents to the world.
Chief Justice John Roberts revealed himself to be (or to have become) a genuine, judicial restraint Burkean conservative who is prepared to uphold liberal precedents and to keep the Trump administration subordinate to the rule of law. He surprised liberals and horrified movement conservatives who had hoped he would lead or at least participate in sweeping away liberal precedents they hate.
And Justice Neil Gorsuch revealed himself as so highly principled in his commitment to textualist statutory interpretation that he will carry its logic to conclusions that liberals love and conservatives hate. His bid to become the intellectual leader of the conservative wing of the court is going to have a different character than court watchers like me had anticipated.
Together, these coming-out events should remind us that the justices aren’t robots, driven by partisan or ideological agendas. They are complex human beings, whose decisions are shaped by jurisprudence, values, beliefs, ideas, emotions and strategies. That’s why they have the capacity to surprise us.
Roberts is now the most influential chief justice since the great John Marshall, who held the job from 1801 to 1835. His power stems from the fact that he is the swing vote on the court. The way he votes will ordinarily win. Roberts was in the majority on every single one of the major cases this term except the Indian law case, the one that almost certainly will have the least real-world impact.
Because the chief justice is entitled to assign the writing of the majority opinion in any case in which he is in the majority, Roberts can give himself the opinion to write in just about every consequential case before the court. That means he will be making the law not just for right now, but also for the generations.
Careful observers have long understood that Roberts likes to talk about precedent. And the whole world knew that, in the 2012 Affordable Care Act case, National Federation of Independent Business v. Sebelius, Roberts crafted a careful, centrist swing opinion that upheld the individual mandate provision of the law while also significantly limiting how Obamacare could be extended to states where governors did not want to get on board.
But Roberts also had some prominent extremely conservative decisions on his account, including a 2013 decision striking down the heart of the Voting Rights Act and his 2018 decision upholding Trump’s Muslim travel ban. And because Roberts has tremendous skill at claiming to follow precedent while actually undermining it, most liberals remained extremely skeptical that he would stand firm on big-ticket issues like abortion rights.
This term, Roberts proved he really does care about precedent. In the Louisiana abortion case, he voted to strike down the law even though, in 2016, he voted the opposite way in a basically identical case coming out of Texas. The only difference was precedent. While he was at it, Roberts signaled that he would uphold Casey v. Planned Parenthood, the landmark 1992 abortion decision that itself declined to overturn Roe v. Wade. True, his opinion also signaled that he is open to chipping away at reproductive rights. But that’s not what the conservative movement wanted when he became chief justice.
Roberts also followed precedent in standing up for the New York district attorney’s right to subpoena Trump’s business records as part of a criminal investigation. This decision fell in line with his DACA decision, insofar as both showed Roberts insisting on the prerogatives of the judicial branch to uphold the rule of law over and against presidential overreach.
Roberts hasn’t become a liberal. But he voted with the liberals when it mattered most. That’s astonishing and vastly important.
Then there’s Gorsuch, who was and remains poised to attempt a probably quixotic attack on the constitutional foundations of the modern administrative state. Gorsuch is a new breed: an activist conservative who wants to make legal and constitutional change.
Before this term, Gorsuch had not crossed ideological lines to join the liberals in any major case. In the LGBTQ employment discrimination case, he showed that he would follow his theory of textualism to the conclusion that liberals wanted, namely that discrimination “because of sex” includes discrimination against LGBTQ people.
This was little short of stunning. It disproved the expectations of people like me who thought that conservative textualism was always being used to produce conservative results. Roberts joined Gorsuch and the court’s four liberals in the 6-3 decision.
Then, for good measure, Gorsuch did it again, using close textual analysis of statutes to conclude that Congress had never retracted the treaty promise to the Creek Nation of a reservation covering a huge chunk of eastern Oklahoma. This time not even Roberts joined him. The 5-4 decision was determined by Gorsuch and the liberals.
Together these decisions showed Gorsuch as deeply principled, not a slave to conservative outcomes. Sure, religious organizations will be exempt from the anti-discrimination law. And many young conservatives understand that homophobia and transphobia are not good looks for their movement.
Nonetheless, Gorsuch completely upended expectations about his jurisprudence. Now liberal academics like me have to admit that he is a serious justice with a serious judicial philosophy that he follows where it logically goes. All he has to do now is to convince conservatives that his brand of conservative activism is appealing. Young conservatives will certainly be impressed by his risk-taking, even if they don’t like the outcomes of these two cases.
Let no court-watcher tell you that this was all anticipated or in the cards. The roots of human decision-making can always be reconstructed retrospectively. That doesn’t mean there are no surprises.
The chief justice picked by George W. Bush has preserved the basic abortion right for a new generation. A justice appointed by Donald Trump gave us anti-discrimination protection for gay and transgender people. This is remarkable. And it should help restore some credibility to a court that has sometimes looked altogether too partisan and ideological.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
©2020 Bloomberg L.P.