Believe it or not, John Roberts handed conservatives a big win at the Supreme Court today, just not the win they wanted. Roberts delivered the opinion of the Supreme Court gutting the Consumer Financial Protection Board and beefing up the argument for the unitary executive. Roberts, in effect, expanded the power of presidents to exercise control over appointees of independent executive branch agencies. The long term ramifications are significant and structural.
But Roberts also sided with the Court’s liberals to strike down an abortion case in Louisiana. He would not concur in their reasoning, but in their judgment. Roberts took a position based on stare decisis and essentially argued that legislatures putting unnecessary obstacles in the way of exercising rights must be restrained by courts. We will see him pull that language back out in a Biden presidency when the Democrats want to curtail the second amendment.
Here’s the thing to understand about Roberts and it goes back to his handing of the Obamacare case. In that case, in the run-up to the 2012 election, Roberts upheld Obamacare on grounds no other justice on the Court agreed with, but also the ground most easy for a Romney administration with a Republican congress to scuttle. He chose to be the ultimate unaccountable politician doing so in a way that took the Supreme Court out of the fighting.
Roberts, as Chief Justice, is more about protecting his turf than preserving an ideology. If you understand Roberts viewing his role as restraining the prevailing powers, his jurisprudence makes more sense.
Consider the census case.
Roberts wrote that opinion a couple of years ago and argued that the Trump Administration could ask the census question, but they had not articulated a clear reason for how they pushed it. Roberts essentially said he did not believe the Trump Administration, but provided them a helpful roadmap for futher administrative decisions.
Fast forward to DACA and again Roberts wrote the decision. He again said what Trump wanted was fine, but Trump failed to adhere to the roadmap Roberts had set out so Trump’s rule had to go. All they had to do was follow Roberts’ roapmap — a roadmap designed to keep the federal judiciary from being dragged into the fighting. Not only could the Trump Administration not follow the road map but, like with the census, they could not even get their story straight.
On discrimination against gays, again you see Roberts playing defensively and exercising a level of political gamesmanship to restrain the other branches. He sees the prevailing winds against Trump. He sees the Trump team bragging about packing conservatives into the courts. He sees the increased talk of the Democrats wanting to pack the Supreme Court.
He and Gorsuch go with the left and write an opinion that gives the left most of what it wants in ways conservatives can use in the future to protect themselves on the religious liberty front.
It’s just gamesmanship. Roberts steers the opinion writing to Gorsuch who uses some twisted textualism to give the left a victory while subtly carving out protections for religious liberty.
Now, with the abortion decision, Roberts gives the left their win against Trump on abortion, the biggest issue of the day. It sucks some of the energy away from those who would want to pack the courts. It neuters an issue. And it gives a middle finger to Trump supporters who have bragged about controling the judiciary.
In other words, Roberts has played politics again in a way designed to insulate the judiciary from the braggadociousness of the right having packed the courts with conservatives and the jealousy of the left that would pack the Supreme Court specifically.
Suddenly, at least in Roberts’ mind, the Supreme Court is off the table as a campaign issue for either side. He’s wrong, but I suspect that is his thinking.
The troubling thing here is not that Roberts is not a conservative or is a liberal. It is that he views his role as restraining the dominant side. He’s over Trump. He holds Trump’s team in contempt. And he sees it as his job to join the side most likely to restrain Trump. He’ll do that with Biden as well. He did that in the Obama Administration. Even when giving Obama wins, like with Obamacare, Roberts was signaling paths forward for conservatives electorally.
Unfortunately for all of us, Roberts is playing politics to protect his institution and he is unelected. He can keep this up for years. In so doing, while trying to restrain the other branches and preserve his own, he is muddying jurisprudence. After today, because of John Roberts, abortion jurisprudence in America is extremely convoluted. And that, my friends, just enhances Roberts’ power.
But here is my prediction — because the right has been so aggressive in stockpiling conservatives on the courts, Roberts felt he needed to side with the left to take the Supreme Court off the table in the election. If Biden wins, the conservative legal advancement will start up again with Roberts delivering wins for the right. As long as Trump is there, however, Roberts sees his job as restraint.
Going back to the Obamacare case, John Roberts’ message to the right seems clear — don’t expect big wins in courts if you don’t even want to try big wins in Congress. Even this Louisiana abortion case could have been different had a Republican House and a Republican Senate with a Republican President in Washington acted differently in legislating on life issues. But then they all have decided to fund Planned Parenthood still.
I’m not sure why John Roberts should be the pro-life warrior Republicans claim to be while funding Planned Parenthood.