Chief Justice John Roberts is the subject of two mostly-flattering pieces in the last few days: an admiring Times op-ed by former Acting Solicitor General Neal Katyal, and a Wall Street Journal article profiling his efforts to craft rulings capable of attracting the Court’s liberals. The articles both raise what I take to be the core tension facing Roberts’s long-term ambitions: he wants to preserve the Court’s authority, but he obviously wants also to drastically change American law and politics.
Each piece agrees, more or less, that there’s a trade-off here. Katyal notes that in this term, the Court was unanimous over 66 percent of the time, a level of concord unmatched since 1940. He argues: “The justices’ ability to cross partisan divides and find common ground in their bottom-line judgment in roughly two-thirds of their cases […] should remind us that even in this hyperpartisan age, there is a difference between law and politics. Unanimity is important because it signals that the justices can rise above their differences and interpret the law without partisanship.” Adds the Journal: “Chief Justice Roberts may be aiming to build a stronger foundation for his jurisprudence by making appeals toward the four liberal-leaning justices, who could see partial accommodation as preferable to outright defeat by the court’s usual five-member conservative bloc.”
One might object that the statistics demonstrating a recent track record of unanimous decisions conceal deep, bitter disagreement on more high-profile cases. Katyal counters this rebuttal, pointing out that “the court was unanimous this term in cases that posed big central questions, like whether the government could search your cellphone without a warrant, whether software could be patented, whether the rules for class-action securities lawsuits should change, and many others.”
Fair enough, but those cases also involved issues that don’t easily sort into ideological or partisan categories. In contrast, when Roberts has had a chance to weigh in on the topics that matter most to movement conservatives, he’s been happy to alter the law in transformative, arguably partisan ways (that “balls and strikes” routine from his confirmation hearings will go down in the annals of nominee disingenuousness). This has been especially true when the rulings give him the chance to unravel or obstruct the projects of 20th and 21st-century liberalism: civil rights and desegregation, affirmative action, limiting money in politics, gun control, universal health care. As Laurence Tribe and Joshua Matz recently noted, when the five conservatives rejected the Commerce Clause as a basis for the ACA’s individual mandate, they “signaled a willingness, perhaps even an eagerness, to resume a judicial role in limiting federal economic regulations that the court had largely abandoned in 1937.”
This is hardly the “humility” and “balls and strikes” mentality we were promised. And as the Journal notes, Roberts is playing a long game: when liberal justices sided with him in a 2009 opinion on the Voting Rights Act, they were (perhaps unwittingly) helping the Chief Justice lay the groundwork for the Court’s notorious 2013 opinion gutting its preclearance requirements. The article quotes a Cornell law professor who argues that “in some instances, ‘the liberals are being naive’ when they lend their votes” to these preliminary steps. It’s hard to disagree—and to avoid the conclusion that a Chief Justice with such long-term (and clearly political) ambitions will need more than unanimity on cell-phone searches to preserve the Court’s authority. If the Court manages to undo huge parts of the last century’s push for racial and economic equality, it will have sacrificed a deeper kind of unanimity—one forged over the course of decades. The four liberals, of course, would never agree to that, but by then I suspect the Chief Justice will have decided that some things are more important than consensus. The troubling moves detected by Tribe and Matz are a clue that this is exactly what Roberts has in mind. If he succeeds, he will have dealt a blow both to liberalism and to the Court’s authority, and citing the number of unanimous decisions from the last few terms is unlikely to provide much comfort.