Conservative Anger With Roberts Misreads His Record

      Republican politicians and conservative Supreme Court watchers are angry, angry, angry with Chief Justice Roberts because of his votes in four of the term’s fifty-three decisions so far. Those four votes in divided cases left conservatives with egg on their faces for their political agenda on such culture war issues as abortion, gay rights, gun laws, and immigration. 

      A more complete examination of Roberts’ votes, however, shows that he has been a reliable conservative vote in decisions that divide along the usual conservative-liberal lines. He has toed the conservative line in criminal law and civil litigation issues and in two decisions that rejected efforts by Democrats and progressive groups to ease absentee ballot voting in Wisconsin and Alabama during the current coronavirus pandemic.

      Among twelve 5-4 decisions this term, Roberts has been in the majority in every one. He  gave the liberal bloc a critical fifth vote in only two: the decision to strike down a Louisiana abortion law and the decision to block the Trump administration from rescinding the DACA program protecting undocumented immigrants brought to the United States as children.

      Roberts provided the sixth vote in the decision that extended the federal civil rights law known as Title VII to prohibit discrimination in the workplace on the basis of sexual orientation or gender identity. Roberts was also part of a six-justice majority in the New York City gun rights case that ended with a nothing-burger after the city repealed the challenged handgun transportation ordinance.

      The armchair psychologists on the right think they know why Roberts strays from conservative dogma. Most commonly, Roberts is viewed as concerned with protecting the Court’s institutional integrity in this hyperpartisan political era. Harvard law professor Richard Lazarus, a friend of Roberts from law school days, views Roberts as trying to send a message to the political branches. “You cannot expect us to behave like partisan legislators,” Lazarus surmises as Roberts’ message, as quoted by the New York Times’ Supreme Court correspondent, Adam Liptak.

      Arkansas’ firebrand Republican senator, Tom Cotton, was among the GOP politicians who denounced Roberts for playing politics with his vote in the Louisiana abortion case. “The chief justice may believe that he’s protecting the institutional integrity of the court,” Cotton remarked to Liptak, “but in reality his politicized decision-making only undermines it.”

      Liptak also describes unnamed conservatives as believing that Roberts’ votes against the administration are motivated by a personal distaste for Trump. These arm-chair psychologists apparently have forgotten that Roberts cast a decisive vote in Trump’s first year in office to uphold Trump’s “Muslim travel ban” despite the distasteful religious and ethnic bias in Trump’s campaign and post-election explanations for the policy. Other critics view Roberts as playing to predominantly liberal editorial pages and the generally liberal slant in legal academia.

      In the current term, Roberts did an enormous favor for Trump in his unilateral order on May 8 to stay the D.C. Circuit’s order granting the House Judiciary Committee access to redacted portions of the Mueller report. Now, surely with Roberts’ support, the Court is letting Trump run out the clock even further by deciding to review the D.C. Circuit’s decision sometime next term, with no decision possible before the November election.

      The conservative grievances with Roberts are so strong that Matt Schlapp of the American Conservative Union is even invoking the “I” word. “If it were up to me, I’d start impeachment proceedings,” Schlapp remarked on Fox News as quoted in a Washington Post account. “If he’s not going to be impeached, he ought to resign and run for Congress.”

      Curt Levey, president of the conservative Committee for Justice, worries just as darkly in an op-ed in the Post [July 2] that Roberts is “following in the disappointingly centrist footsteps of previous swing justice Anthony M. Kennedy.” Levey concedes that a conservative jurisprudence may not always yield conservative results, but he goes on to accuse Roberts of being “guided by ideological or political objectives.”

      In fact, Roberts’ votes in the four cases that upset conservatives this term reflect conservative principles straight out of the judicial restraint textbook. In the abortion case, June Medical Services v. Russo, Roberts followed precedent in providing the fifth vote needed to strike down a Louisiana law virtually identical to a Texas law struck down four years earlier. In the immigration case, Roberts led the 5-4 majority in Regents v. Department of Homeland Security in holding, in effect, that the president cannot abolish a government program based solely on disagreement with the policy or his unsupported view of its supposed illegality.

      Roberts followed “plain meaning” principles of statutory construction in the Title VII case, Bostock v. Clayton County, by concluding that a law prohibiting discrimination on the basis of sex necessarily encompasses discrimination based on sexual orientation or gender identity as well. As for the New York City gun law case, the dispute was clearly moot after the city repealed the ordinance. Roberts’ vote reflected his aversion to judicial activism as seen in his frequent phrasing: “If it’s not necessary to decide a question, it is necessary not to decide it.”

      Roberts need have no fears of impeachment. With lifetime tenure, he can survive the slings and arrows of outrageous fortune from the political right. But the conservative critics who accuse him of playing politics betray themselves by viewing the Court’s decisions solely through their narrow political lenses.