Umpire, ideologue, politician or institutionalist? Will the real John Roberts please stand up? | Fletcher McClellan

July 15, 2020 6:30 am

U.S. Supreme Court Chief Justice John Roberts (L) arrives at the U.S. Capitol January 21, 2020 in Washington, DC.(Win McNamee/Getty Images)

The conclusion of the U.S. Supreme Court’s 2019-20 term surprised seasoned observers of the judiciary and the public alike.

Fletcher McClellan (Capital-Star file)

With two appointees of President Trump, Justices Neal Gorsuch and Brett Kavanaugh, in place, experts predicted the Court to rule in favor of positions held by the president and social conservatives.

Instead, Gorsuch found that the Civil Rights Act of 1964 protected LGBTQ citizens from job discrimination. A majority overturned Trump’s efforts to terminate the DACA program, which allows children born to undocumented immigrants to stay in this country.

In addition, the Court invalidated a Louisiana law making access to abortions more difficult.

Lastly, the justices rejected the president’s claim to absolute immunity while in office from subpoenas demanding his tax returns. Both Trump appointees joined the majority.

Purist politicians such as U.S. Sen. Josh Hawley (R-Mo.) denounced the Court for betraying conservative principles.

The object of most criticism was Chief Justice John Roberts, who voted with the liberal bloc of the Court in the LGBTQ discrimination, DACA, abortion, and Trump tax cases.

Prior to this term Roberts was viewed as anti-abortion and anti-gay rights. For example, he dissented from the Court’s historic decision legalizing same-sex marriage.

Moreover, he wrote the majority opinion in Trump v Hawaii (2018), which upheld a modified version of the president’s ban on immigration from Muslim-majority countries.

What changed Roberts’ mind? Did he experience an ideological conversion? Was politics or public opinion a factor? Or, did the Chief Justice act out of concern for the judiciary’s role in our checks and balances system?

Ideologically, make no mistake – John Roberts is a conservative who can clobber home runs or settle for singles.

Since President George W. Bush appointed him Chief Justice in 2005, Roberts has presided over major changes – establishing individual gun rights, dismantling campaign finance regulations, and weakening voting rights.

This year’s big change pleased school choice advocates when Roberts, writing for a 5-4 majority, struck down a Montana constitutional provision barring state aid to parochial schools, a decision that may invalidate similar restrictions in 38 states, including Pennsylvania.

Otherwise, the Roberts Court worked incrementally, allowing employers to opt out of the Obamacare birth control mandate for religious reasons.

On LGBTQ rights, the Chief Justice is poised to exempt religious organizations from anti-discrimination laws. Additionally, observers detect that Roberts is signaling anti-abortion forces not to send outright bans on abortion to the Court.

As for political influences, Roberts has vigorously asserted that judges are umpires, basing their decisions only on the law. Nevertheless, he has displayed a shrewd tactical sense.

Roberts’ decisive vote in 2012 to uphold the constitutionality of the Affordable Care Act was unpopular with Republicans, but it shifted the debate to the states.

Eight years later, 13 states – including Florida, Texas, and Georgia – have still not expanded Medicaid under the ACA.

Similarly, the Chief Justice’s majority opinion permitting subpoenas of a sitting president affirmed the principle that no one is above the law.

On the other hand, procedural hurdles make it unlikely the public will see the contents of Trump’s tax returns before the November election.

In election years, Roberts has a sixth sense about taking the Supreme Court out of presidential politics.

On the 2020 cases in which he joined the liberals, the Chief Justice chose positions that the public strongly favored.

This brings us to Roberts’ role as head of the judicial branch of government.

Recall that the Chief Justice officiated the trial of President Trump, in which the Senate acquitted the president of abusing his powers.

There, he had a front-row seat to the toxic partisanship that afflicts Congress and the near-total acquiescence of Senate Republicans to Trump’s defense.

If nothing else, impeachment reminded him that the Supreme Court must appear independent of political control.

Roberts is in a unique position to keep the other branches of government accountable.

Not since the 1930s has a chief justice been the swing vote on the Court. Remarkably, Roberts was on the majority side in 97% of cases this term.

Not only did Roberts dictate the outcome of cases, he shaped the legal rationale because the Chief Justice chooses who writes the Opinion of the Court if he is in the majority.

Interestingly, Roberts has aligned with liberal justices on only a handful of cases in his Supreme Court career, enough to maintain a facade of impartiality.

That’s why Roberts will almost certainly be a thorn in the side of Democrats if they succeed in taking over Washington, D.C. next year.

No doubt, conservatives will cheer him on.

Opinion contributor Fletcher McClellan is a political science professor at Elizabethtown College in Elizabethtown, Pa. His work appears biweekly on the Capital-Star’s Commentary Page. Readers may email him at [email protected], and follow him on Twitter at @mcclelef.

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Fletcher McClellan
Fletcher McClellan

Opinion contributor Fletcher McClellan is a political science professor at Elizabethtown College in Elizabethtown, Pa. His work appears biweekly on the Capital-Star’s Commentary Page. Readers may email him at [email protected], and follow him on Twitter at @mcclelef.