| By Alexander Heller | (Published on October 12, 2020)
To say Chief Justice John Roberts holds tremendous influence on American jurisprudence would be a dramatic understatement to those who routinely follow the Supreme Court. His leadership and moderate conservatism have shaped the way the American justice system is today and provide a hopeful future for those — on both sides of the political spectrum — looking to also make a substantial impact on the legal system.
Yet underneath all of this enormous clout lies a man whose judicial philosophy is as mysterious as it is compelling. Chief Justice Roberts may be viewed as a maverick to some, but what exactly is his judicial philosophy? What kind of leader is he? And what do we make of his Court if this era of political polarization continues?
It may be difficult to pinpoint exactly the type of Chief Justice he is, but throughout all of his experiences, it seems that John Roberts may just be the type of Chief Justice Americans have been looking for.
Early Life and Career
John Glover Roberts Jr. was born on January 27, 1955, in Buffalo, New York. The son of Rosemary and Jack Roberts Sr. spent his early childhood years in Hamburg, New York. His father worked as an electrical engineer in nearby Lackawanna. In 1965, his family moved to Long Beach, Indiana, where his father became a new steel plant in nearby Burns Harbor. He attended Notre Dame Elementary School and then La Lumiere School, a small but affluent Roman Catholic boarding school. He graduated first in his class in 1973.
The following year, John Roberts entered Harvard majoring in history, and graduated in 1976 with an A.B. summa cum laude. He initially pursued a Ph.D. in history, but he entered Harvard Law School after taking a liking to law and political theory and served as managing editor of the Harvard Law Review in his third year. In 1979, he graduated with a J.D. magna cum laude.
After law school, Roberts first clerked for Judge Henry Friendly of the U.S. Court of Appeals for the Second Circuit from 1979 to 1980, then clerked for Justice (later Chief Justice) William Rehnquist of the U.S. Supreme Court from 1980 to 1981. Between 1982 and 1992, he worked for the U.S. government during the Reagan and Bush administrations. He served as an assistant to the Attorney General, an associate with the White House Counsel, and as Principal Deputy Solicitor General.
Following Bush’s defeat in 1992, Roberts entered private practice and became an adjunct professor at the Georgetown University Law Center. During this time, Roberts famously argued before the Supreme Court, winning 25 out of the 39 cases he argued. This included United States v. Microsoft, where he represented 19 states.
In 2001, President George W. Bush nominated Roberts to a seat on the D.C. Circuit to replace Judge James L. Buckley. However, the Democratic Party had a majority in the Senate and was in conflict with Bush over his judicial nominees. When Republicans regained control of the Senate in 2003, Bush resubmitted Roberts’s nomination. He was confirmed on May 8, 2003.
In July 2005, Bush nominated Roberts to the Supreme Court to fill a vacancy created by Justice Sandra Day O’Connor’s retirement. While Roberts’s confirmation was pending before the Senate, Chief Justice Rehnquist died on September 3, 2005. Two days later, Bush withdrew Roberts’s nomination as O’Connor’s successor and announced Roberts’s new nomination as Chief Justice.
On September 22, the Senate Judiciary Committee approved Roberts’ nomination by a vote of 13–5. He was later confirmed by the full Senate by a margin of 78–22. Though a substantial margin by today’s standards, John Roberts’s confirmation was exceptionally narrow for a Chief Justice. In many respects, Roberts’s confirmation might have been a harbinger of sorts to future narrow confirmations to the Court.
The Roberts Court
During his confirmation hearing, Roberts analogized his position to that of a baseball umpire. He famously said, “It’s my job to call balls and strikes and not to pitch or bat.” This, in essence, mostly sums up his philosophy that the Court is the final check on controversial matters concerning Americans and their government and doesn’t advance or impede certain judicial philosophies.
A federalist/textualist (in some cases), Roberts’s influence of the Court has also been a matter of keeping politics out of the cases and arguments presented to the Court itself. Roberts’s attempt to keep the Court apolitical has garnered him both praise and criticism from all walks of political life. With that in mind, his decision making and leadership demonstrates an intent to preserve the Court’s power and legitimacy while maintaining judicial independence. This is often seen in his subtle yet fierce lobbying of other Justices to concur or dissent alongside him. Where he stands on crucial issues, however, is another story.
Roberts was initially considered to be more conservative than his predecessor, Chief Justice William Rehnquist. During his early years on the bench, he often sided with Justices Clarence Thomas and Antonin Scalia. With Justices John Paul Stevens and Anthony Kennedy’s retirements, Roberts’s views have often skewed to Rehnquist’s left. He still remains a moderate supporter of the right, however. Roberts is often the deciding swing vote in some cases. This is a position he filled after the death of Justice Scalia and the retirement of Justice Kennedy.
Much like many conservatives on the Court, Roberts is a supporter of religious liberties. However, he is stringent on how to best exercise said liberties. The same can be said about his voting rights pattern, LGBTQ rights, immigration, and abortion rights. He’s arguably the most moderate conservative on the Court but is often evasive when explaining his views.
Yet what is certain is his views of the federal government. He’s sided on cases concerning the broad and expansive powers of the presidency (particular immigration) and only sides with Congress on matters that might impact the country’s population as a whole. His federalist view of the Constitution is arguably the only thing that’s certain about Chief Justice John Roberts.
While Roberts’s majority opinions have shaped the way federal law is enacted and enforced in a largely conservative manner, the following cases outline his transition from a staunch conservative to a moderate conservative:
- In 2006, Roberts dissented alongside Justices Scalia and Thomas in Gonzales v. Oregon, which held that the Controlled Substances Act does not allow the Attorney General to prohibit physicians from prescribing drugs for the assisted suicide of the terminally.
- Following his 2010 concurrence in Citizens United v. FEC, Roberts wrote the majority decision for another landmark campaign finance case called McCutcheon v. FEC. The Court ruled that “aggregate limits” on the combined amount a donor could give to various federal candidates or party committees violated the First Amendment.
- In Gonzales v. Carhart, Roberts voted with the majority to uphold the Partial-Birth Abortion Ban Act’s constitutionality. Justice Kennedy distinguished this case from Stenberg v. Carhart and concluded that the Court’s previous decision in Planned Parenthood v. Casey did not prevent Congress from banning the procedure. The decision left the door open for future as-applied challenges. It did not address the broader question of whether Congress had the authority to pass the law.
- In 2018, Roberts and Justice Brett Kavanaugh joined four more liberal justices in declining to hear a case brought by Louisiana and Kansas’s states to deny Medicaid funding to Planned Parenthood. Roberts also joined with liberal justices in 5–4 decisions, temporarily blocking a Louisiana abortion restriction and later striking down that law. The law at issue was similar to one the Court struck down in Whole Woman’s Health v. Hellerstedt, which Roberts had voted to uphold. Roberts wrote that while he believed Whole Woman’s Health was wrongly decided, he joined the majority out of respect for precedent. It was the first time in his 15 years on the bench that Roberts had cast a vote to invalidate a law that regulated abortion.
- In 2012, Roberts delivered the majority opinion in National Federation of Independent Business v. Sebelius, which upheld the Patient Protection and Affordable Care Act by a 5–4 vote. The Court indicated that the “individual mandate” component could not be upheld under the Commerce Clause. However, it held the mandate could be construed as a tax. It was therefore ruled to be valid under Congress’s authority to “lay and collect taxes.”
- In the cases of Bostock v. Clayton County, Georgia, Altitude Express Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, heard together, Roberts ruled with the 6–3 majority deciding that businesses cannot discriminate against LGBT people in matters of employment.
- In Department of Homeland Security v. Regents of the University of California, the Court held that a 2017 U.S. Department of Homeland Security (DHS) order to rescind the Deferred Action for Childhood Arrivals (DACA) immigration program was “arbitrary and capricious” under the Administrative Procedure Act (APA) and reversed the order. Writing for the 5-4 majority, Roberts focused only on the application of the due process of the APA in the DHS’s decision to rescind DACA and found it unlawful
The Future of the Roberts Court
Assuming President Trump’s Supreme Court nominee, Amy Coney Barrett is successfully appointed to the Court, Roberts might have to personally deal with her appointment’s political fallout. His Court might have a 6-3 conservative majority, but the implications may undermine its legitimacy. After all, three Justices were appointed by President Trump, who won the Electoral College but not the popular vote.
It’s certainly not good optics. With the possibility of adding additional Justices to the Court, Roberts may just have to kick his persuasive leadership into overdrive. His Court has the potential of overturning certain privileges vulnerable Americans use every day. With this harsh political climate not looking to go away anytime soon, Roberts may just have to forego his “umpireship.”
It’s unclear whether Roberts will become more liberal or sideline his responsibilities to the conservative bloc. However, given his recent rulings and influential position, he may become the most powerful individual in the country. It’s a possibility that Roberts could turn out to be the Chief Justice that unilaterally restores American’s faith in the Judiciary.
For more on this article, contact Alexander Heller on Twitter @AFXHeller