A Different View About Chief Justice Roberts and this Year's Term: The Return of O'Connorism

By Eric Segall

As legal scholars and pundits publish their year end op-eds and essays about the Court's 2019-2020 term, one clear trend emerges. There is almost universal acclaim for how Chief Justice John Roberts steered the Court into the political center and showed that, for at least this term, the Court was above politics. Luminaries such as Yale Law Professor Akhil Amar and Harvard's Noah Feldman wrote pieces in the New York Times and Bloomberg respectively, suggesting, in the words of Amar, that "The Roberts Court is nothing like America. In a polarized nation, the Court continues to defy partisanship." Similarly, Feldman wrote that "Chief Justice John Roberts revealed himself to be (or to have become) a genuine, judicial restraint Burkean conservative who is prepared to uphold liberal precedents and to keep the Trump administration subordinate to the rule of law... [The Term] showed that the justices aren’t robots, driven by partisan or ideological agendas." These perspectives on Roberts particularly and the Court generally, reflect the (good faith) need of constitutional law professors across the country to pin acclaim on the institution they write and teach about. Let's take a closer look.

Virtually everyone gave the Court high fives for its decision providing gays, lesbians, and transgender people legal protections against employment discrimination. I agree and gave the decision three cheers in my year-end summary. And if folks simply celebrated the result, which was obviously a good one for folks interested in LGBTQ equality, I'd have nothing else to say. But many commentators failed to focus on the positive real world effects of the decision and instead applauded Roberts and Gorsuch for reaching a decision that they claimed conservatives generally hate. According to Feldman, Justice Neil Gorsuch "revealed himself as so highly principled in his commitment to textualist statutory interpretation that he will carry its logic to conclusions that liberals love and conservatives hate." 

Hogwash. As I mentioned here, roughly 70% of Americans want gays and lesbians to have equal rights at work with heterosexuals, and I'm pretty sure so do Gorsuch and Roberts (the latter's dissents in the same-sex marriage cases no doubt reflect his traditional Catholic/family values as much as any particular perspective on constitutional law). In any event, it is empirically false that "conservatives hate" the decision. The far right and evangelicals maybe, conservatives no. Chief Justice Roberts is conservative and a GOP loyalist, but he's not far right. Of the three dissenters, Alito and Thomas fall into the extremely far right category, and it's too early to tell about Kavanaugh. But they hardly represent most of America's conservatives.

Moreover, the almost unanimous view among left, right, and moderate scholars and pundits that Gorsuch's opinion reflected his oft stated preference for texualism is hard to square with the reality that any fair reading of the dissents shows that people committed to just reading the words of the law at issue, and prior Supreme Court opinions construing those words, could reasonably disagree on whether discrimination "based on sex" should or should not cover discrimination based on sexual orientation or gender identity. So-called rigid textualism didn't require or in my opinion even lead to the result. Cases about equality almost always implicate values all the way down. The most that should be said is that in this case, for most of us (meaning the American people), six of nine Justices held the right values.

The tributes to Chief Justice Roberts and his steering the Court to some liberal outcomes have been way overstated. His vote in June Medical to stand by the Court's decision four years ago invalidating an absurd requirement that doctors must have admitting privileges at nearby hospitals might be explained by Roberts's desire to stand by precedent, as he said, except that Roberts has in the past felt little compunction to abide by prior Court decisions. He has overturned prior decisions in important free speech cases and of course in Shelby County v. Holder, where, as I explained here, he sneakily avoided an important Court precedent by unprofessionally using ellipses to misquote that case all on the way to shredding the Voting Rights Act. 

Further, as others have observed, Roberts's opinion in June Medical changed the legal test from the case he said he was following as a matter of stare decisis in a substantial way that endangers the future of abortion rights. If I had to guess, I would suggest that Roberts's motivation was based more on anger at the fifth circuit for flagrantly not following a recent Court decision and a desire to avoid a major abortion ruling in an election year. There's nothing inherently wrong with Roberts deciding the case for those reasons except for the lack of transparency in his explanation and the reality that if I'm right, we shouldn't confuse political calculations and institutional loyalty for rule of law values.

Professor Amar said the following about the cases involving Trump's tax returns: "This month, Justices Kavanaugh and Gorsuch also joined liberals by concurring in a momentous judgment by Justice Roberts allowing prosecutors in New York to investigate the financial records of President Trump, who put them both on the court." It is far from clear whether this will be a "momentous decision," as both Mike and Neil have observed. There is virtually no chance either the NY prosecutor or the House will get these documents anytime soon, and no chance the public will get them before the November election. "Momentous" is simply not the right word to describe two opinions which in Mike's words, had "very little ... immediate practical importance ... at stake." 

The third allegedly big liberal decision this term was the Court's telling the Trump Administration that it could not end DACA and the dreams of innocent immigrant children. In addition to me being quite skeptical that the Court got this issue right, Roberts's opinion makes clear Trump can reinstate the program relatively easily by complying with the Administrative Procedure Act. This ruling was more of a slap on the wrist than a major decision, and while its immediate effects please those of us who are sympathetic to the plight of these innocent children and young adults, they are hardly safe if Trump is re-elected. And similarly to the abortion and gay rights opinions, if anything the DACA decision makes it much more likely that Trump will be re-elected by running hard against the Court on these issues. Moreover, as Professor Leah Littman wrote in the Atlantic, it is likely the liberal victories at the Court this term will be "fleeting" at best. Littman's essay is an exception to the avalanche of praise heaped on the Court this term by most scholars and commentators.

Finally, in all of the reverence most law professors and pundits, especially liberal ones, are showing the Court this term, they are underemphasizing two important conservative decisions continuing the trend of the Roberts Court to give religion preferential treatment at the expense of other groups. As I discussed here, both cases gave religious private schools huge presents. In one, decided 5-4 along partisan lines, the Court announced a new formal rule that whatever assistance a state decides to give to private secular schools it must also give to religious schools. The Constitution simply does not justify this required use of taxpayer money for religious purposes, but more importantly this case portends something much more momentous. Pretty soon the religious right is going to file a lawsuit arguing that if a state funds public schools, which by their nature must be non-religious, the state must also fund religious schools to the same degree. You might think this is far-fetched, but Roberts is famous/notorious for playing the long game and, in any event, if more conservative Justices are added to the Court, it might not matter what Roberts thinks.

The other big religion case involved two teachers at religious schools fired for secular reasons that they claimed violated federal non-discrimination laws. Chief Justice Roberts wrote for the majority that the schools had an absolute right to fire these teachers without regard for federal law, putting these schools quite literally above the law. Legal scholars and pundits have been quick to point out that this decision was 7-2 with Kagan and Breyer going along but that doesn't make the decision any less pernicious, and both of those Justices have been trying for a while now to go along with conservative precedents they  have no hope of changing--most likely playing a very different kind of long game (hoping to align with the Chief as often they can).

What the Court was quite obviously trying to do this term was find a role for itself that would affect the election as little as possible by issuing a series of decisions that would be perceived somewhere between right of center and center, and occasionally left of center. This mode of decision-making was the hallmark of swing voter Justice Sandra Day O'Connor for most of her career. As Linda Greenhouse once wrote, quoting one of O'Connor's biographers, "O’Connor displayed 'laser judgment about what the court — and the society — would digest at any particular moment.'” O'Connor, the last Justice to have actually served in a legislature, was [in]famous for trying to find the center of American politics and keep the Court, on most issues, just to the right of that center. Roberts is more conservative than O'Connor but so is America now than when O'Connor was on the Court. This term reflected Roberts's desire to be a Chief in the mode of an O'Connorian judge, and he succeeded.

All of that is interesting as a political matter, and I have no opinion whether it is good or bad. But what is clear is that once again law, meaning text, history, and even prior cases (with maybe one exception) were far less important than the Justices' personal and institutional values to the results they reached on important questions that affect all Americans. The Court may have been an excellent veto council, just as O'Connor was often an astute politician, but it certainly wasn't a court of law. As even Feldman observed, correctly, in his piece, the Justices "are complex human beings, whose decisions are shaped by jurisprudence, values, beliefs, ideas, emotions and strategies. That’s why they have the capacity to surprise us." Just so.