All Eyes on Roberts as Court's Man in the Middle

       Twice within the span of two weeks, Chief Justice John G. Roberts Jr. joined this month with the Court's liberal justices in rulings over sharp dissents from his conservative colleagues on two of the Court's perennially divisive issues: abortion rights and capital punishment. In both actions, Roberts was reversing his previous positions on the issues — not necessarily because of a change of mind but because of a need to enforce the Supreme Court's precedents on recalcitrant appellate courts down in Texas.
      Roberts' decisive vote in the first of the two cases, June Medical Services v. Gee [Feb. 7], helped block Louisiana for the time being from putting into effect a law regulating abortion clinics identical to a Texas law the Court struck down three years ago. Two weeks later, Roberts sided with the liberal justices in Moore v. Texas [Feb. 19] to spare a Texas inmate from the death penalty by reenforcing the Court's previous ruling in his case two years ago.
      These previously unaccustomed lineups came as Roberts moved into a new role on the new Court created when the hard-line conservative Brett Kavanaugh took his seat in October as successor to the moderate conservative justice Anthony M. Kennedy. With Kennedy's retirement, Roberts now finds himself as the man in the middle between two well-defined ideological blocs of four moderately liberal justices and his four aggressively conservative colleagues.
      The Court's order in the Louisiana abortion clinic case came without any written opinion. The five-justice majority refused the state's request to stay the decision by the Fifth U.S. Circuit Court of Appeals to uphold the law; four justices said they would have granted the stay: Clarence Thomas, Samuel A. Alito Jr., and President Trump's two appointees, Neil M. Gorsuch and Brett Kavanaugh. With no written opinion, it was left to Court watchers, such as the former New York Times reporter Linda Greenhouse, to assume that Roberts acted to protect the Court's authority over lower tribunals. "[C]ircumstances compelled the chief justice to stand up to a stunning act of judicial defiance," Greenhouse wrote in a column on the Times' website.
      Roberts was explicit in the Texas death penalty case in bench-slapping the Texas Court of Criminal Appeals for finding Bobby Moore eligible for the death penalty despite the Court's instructions that the appeals court reconsider the issue. "On remand, the court repeated the same errors that this Court previously condemned . . . ," Roberts wrote in a concurring opinion in the 6-3 decision. Detailing the errors, Roberts added: "That did not pass muster under this Court’s analysis last time. It still doesn’t." In a dissenting opinion, however, Thomas, along with Alito and Gorsuch, complained that the majority had engaged in "factfinding" that the justices usually leave to lower courts.
      The actions gave substance to Court-watchers' speculation that Roberts may use his new position to rein in the conservative bloc's interest in establishing new conservative precedents and discarding or neutering old liberal rulings. And well he might, but Roberts' actions up to now in his 14 terms as chief justice of a majority conservative Court provide limited evidence at most of his favoring institutional stability over conservative ideology.
       Conservatives felt more than disappointed, actually betrayed, seven years ago when Roberts deserted his four conservative colleagues to craft a five-vote majority in National Federation of Independent Business v. Sebelius (2012) to uphold President Obama's Affordable Care Act. Even while upholding the law as a tax, however, Roberts backed up the four conservative justices in their opinion that rejected any authority for Congress to enact the law under its power over interstate commerce.
       Roberts' role in the Obamacare case is the exception that proves the rule. Ever since he took the reins at the start of a new term in October 2005, Roberts has been a consistent vote for leading his conservative colleagues in closely divided, precedent-bending decisions that cheered Republicans and other conservatives on issues ranging from abortion rights and civil rights to campaign finance and gun rights.
       The winds of change could be seen in Roberts's first term as soon as Sandra Day O'Connor's retirement took effect midway through the term in January 2006. With Samuel Alito as O'Connor's successor, the Court reheard arguments in a significant exclusionary rule case, Hudson v. Michigan, that found no need to suppress evidence police found in home search after an acknowledged violation of the so-called "knock and announce" rule.
       The Roberts-Alito Court — with Kennedy succeeding O'Connor as the only justice in the middle — essentially held sway for another decade until the hiatus after Justice Antonin Scalia's death in February 2016. President Obama's two appointments to the Court — Sonia Sotomayor as David Souter's successor and Elena Kagan as John Paul Stevens' successor — may have changed the dynamics among the justices but without changing the balance of power.
       By the time of those appointments, Roberts had already led the Court in a 5-4 decision that limited local school districts' power to design pupil assignment plans to promote racial balancing (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). He also spoke for a 5-4 majority in a decision, Herring v. United States (2009),  that significantly changed the rationale for suppressing evidence after an illegal police search.
       In other decisions, Roberts provided a fifth vote for explicitly overturning precedents despite his professed respect for the principle of stare decisis. He supported the 5-4 decision in District of Columbia v. Heller (2008) to change Second Amendment law to recognize a personal right to possession of firearms. Two years later, he voted with the 5-4 majority in Citizens United v. Federal Election Commission (2010), to overturn two precedents in order to give corporations free rein to spend money on federal election campaigns.
      With that record in mind, two experienced Court watchers are still predicting that Roberts will turn into a judicial pussy cat at times in his newfound role. "We anticipate that the chief justice will sometimes embrace narrow minimalism in order to seek to build a bipartisan consensus," Neal Devins and Lawrence Baum said in a recent interview on SCOTUSblog. They added, nevertheless, a second prediction that Roberts "will back maximalist rulings" on issues where he has "strong legal policy preferences . . . even if those rulings divide the Court's Democrats and Republicans." As President Trump would say, less than insightfully, "we'll see what happens."