Chief Justice John Roberts, the 2020 Election, and the Politics of Judicial Review

By Eric Segall
     While our country is reeling from the chaotic effects of the Coronavirus, those of us with expertise unrelated to medical issues should probably keep doing what we do. Even though the Supreme Court has postponed new oral arguments, there is a crucial election in November and major constitutional law cases will still be decided by the Court this term. This essay shows how the two are related.
      Eight years ago this month, the Supreme Court of the United States heard three days of oral arguments on the fate of President Obama’s signature legislation--the Affordable Care Act. At the time, virtually everyone expected that now-retired Justice Anthony Kennedy held the key swing vote. At that point in time, Chief Justice Roberts had never joined with the four liberals in a 5-4 constitutional case, while Kennedy's batting average in such cases made him the Court's most important player--by far.
        But when the Court issued its decision in June, 2012, just a few months before the 2012 Presidential election, Roberts surprised the entire legal world by joining with the four liberals to uphold the central parts of the law by finding the mandate to buy health insurance was a valid tax. The other four conservative Justices voted to strike down the entire statute.
      Many scholars suggested that the Chief was more concerned with the institutional integrity of the Court, his own personal reputation, and how the case might potentially affect the Presidential race than with legal norms and proper constitutional interpretation. One Court watcher commented that Roberts’ legal analysis was “incoherent." I personally believe that every legal issue in the case was wrongly decided. Congress had the commerce clause authority to require Americans to buy health insurance thought the Court held it didn't, the mandate wasn't a tax (and if it was the case wasn't ripe because no one had paid it yet), and the Medicaid part of the law did not violate the Spending Power as the Court held. I felt strongly something other than legal reasoning generated Roberts's votes in the case.
       This term the Justices will issue important decisions on numerous controversial topics including abortion, religion, and the Second Amendment. How they rule in these cases could have dramatic effects on the 2020 election. Chief Justice Roberts is well aware of that possibility and is likely once again to factor in political considerations as he mulls over how he will rule. This time, however, unlike 2012, there is virtually universal agreement that he holds the all-important swing vote in these cases.
       Although the public might like to think or pretend that the Justices only ponder legal and constitutional considerations when deciding cases, most political scientists and journalists believe that in high-profile cases, such as the abortion, religion, and Second Amendment disputes this term, the Court as a matter of course acts, well, politically. Conservatives usually vote conservative and liberals consistently vote liberal. The fact that the Justices act more unpredictably in cases that do not raise political stakes doesn’t mean that they don’t act according to their values and politics in cases that do. Moreover, in election years, as the Obamacare case shows, sometimes strategic political or partisan considerations might also affect at least some of the Justices.
       Take this term's abortion case as an example. There is little debate that the GOP has used abortion as an effective fundraising and get-out-the-vote tool since at least 1980, when Ronald Reagan called for a constitutional amendment to ban abortion and convinced evangelicals and their millions of voters to support his campaign. 

        The Louisiana anti-abortion law the Court is considering now is identical to the Texas law the Justices struck down just three terms ago while Justice Kennedy was still on the bench. At the oral argument a few weeks ago, the Chief asked a set of questions suggesting that he was skeptical of the arguments made by the court of appeals that the facts in the Louisiana case were different enough from the facts of the Texas case to warrant a different outcome. 

         If that is true, one may wonder why the Court didn’t just summarily reverse the Louisiana decision as it did with a post-Citizens United case raising the same legal issues as that case. One possibility is that it only takes four Justices to vote to hear a case and maybe Justices Thomas, Alito, Kavanaugh, and Gorsuch thought they had the Chief’s vote. After all, with the exception of one procedural vote, Roberts has voted to strike down every abortion law to ever come before him (his wife is part of an anti-choice organization called “Feminists for Life”), and yes such things sometimes matter quite a bit to the Justices.
       Another possibility is that the Chief’s questions at the argument were intended to show that the facts of the cases are essentially the same as the Texas case so the only way Louisiana’s law can be upheld by the Court is for the Justices to change the law to be less protective of the right to choose, something Roberts probably favors. It is also possible, being the institutionalist that he is, that Roberts was angry at the lower court for affirming a law identical to one the Justices struck down just a few years ago.
      There is one last possibility, however, that may be the most cynical but also the most likely. If the Court sustains the Louisiana law, but the facts in Louisiana and Texas aren't different as Roberts suggested, it must do so either by watering down the usual “undue burden” test now governing abortion cases or by changing the law altogether. Roberts knows, however, that if the Justices take that step, it will be harder for the GOP generally and Trump specifically to make the Court an issue in November. This concern would be magnified substantially if the Court in June also strengthens the Second Amendment and issues a strong religious liberty decision as well. A Supreme Court with a five-Justice majority weakening the right to choose while bolstering gun rights and “religious liberty” law dilutes considerably the GOP’s use of the Court as a campaign issue.
     Supreme Court Justices should not consider how their decisions affect the polling booth. But they, or at least some of them do, and I think it is unlikely that the five Republican Justices on the Court, two of whom were appointed by Trump, and one of whom, Justice Thomas, has a wife who is strongly pro-Trump, would want to weaken the GOP’s chances of success in November.
       On the other hand, if these Justices feel Trump is likely to lose, they may want to go all in now while they have a firm majority on the Court given the open threats by Democrats to pack the Court should they capture both the Presidency and the Senate later this year.
        The law reviews next year will be full of legal analyses of the important abortion, gun, and religion cases the Court will decide this term. But just as was likely the case with the Obamacare case decided eight years ago, political concerns may play just as strong a role, if not more so, in these high-profile cases. It is time more legal scholars expressly consider the politics of judicial review when they think about how the highest Court in the land resolves its most important and controversial cases.