John Roberts, Politics, SCOTUS, Supreme Court

Chief Justice John Roberts 'Comes Out'

Do you have something you'd like to share with us, Mr. Chief Justice?

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The press has been littered with coverage of a certain celebrity who has begun a very public, utterly fundamental transition from one identity to another. His new identity probably seems all the more shocking because he used to seem like an absolute icon of the identity he is now abandoning.

People have speculated about the change for a while now. When someone leads such a high-profile life, the media — critics and fans alike — scrutinize every available tidbit, right down to what one eats or doesn’t eat for brunch. The time for whispers is over, though. The time has come for a certain someone to come clean about who he is deep down inside, no matter what he has looked like from the outside.

Now, I know that a lot of people think this public transition from one identity to another shows courage. However, if I am to be the token conservative columnist here at Above the Law, well, damn it, I need to say something.  Because some things just aren’t right.

I’m not talking about Bruce Jenner and his announcement that he is transitioning from male to female. I’m talking about Chief Justice John G. Roberts. I’m talking about the Chief’s transition from one of the U.S. Supreme Court’s stalwart conservative Justices to one of its most centrist and vacillating. Although he’s dropped clues for a long time, John Roberts has now fully assumed his new identity as a perpetual swing vote on the Supreme Court, every bit as unpredictable as Anthony Kennedy.

The Signs

Conservatives have been wary of the Chief at least since 2012, although most of us have held out hope. Roberts shocked liberals and conservatives alike by upholding the Affordable Care Act’s individual mandate as a valid exercise of Congress’s taxing power. Roberts rode his camel through the eye of the Obamacare needle by construing the mandate as a tax rather than a penalty.

Though the Chief Justice’s leftward dive in NFIB may be his most notorious swing vote, he is accumulating a high heap of cases where he unexpectedly joins liberal colleagues in otherwise divided opinions. Last year around this time, I explained why conservatives should be disappointed in a 9-0 ruling in favor of abortion opponents, thanks to JGR. Then there’s campaign finance law. Sure, in Citizens United v. FEC, JGR voted with the Kennedy’s conservative opinion of the Court. Roberts himself wrote for the conservative majority in last term’s McCutcheon v. FEC. Yet last week, the Chief authored Williams-Yulee v. Florida Bar, where he and the liberal Justices upheld Florida’s restriction on campaign activities in judicial elections. This term, he’s also departed far from the right in Yates, Young v. UPS, North Carolina Board of Dental Examiners, and others.

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A glimpse at the Chief’s stats reveals a lot. As of right now, JGR has agreed in full, in part, or in judgment with Stephen G. Breyer more than with any other Justice. Chief Justice Roberts and Justice Breyer have voted together 90% of the time this term. Justice Breyer’s agreement rate with his fellow liberal Justices is 92%, only two points higher than with JGR. Ninety percent is the same rate of agreement between RBG and Sonia Sotomayor, as well as RBG and Elena Kagan.

Meanwhile, Chief Justice Roberts’s agreement rates with conservatives are abysmal — 67% with Clarence Thomas, 77% with Samuel Alito, 79% with Antonin Scalia.

Recently, the Chief has voted with fellow “swinger” Anthony Kennedy a paltry 69% of the time. This extraordinarily low agreement rate with Justice Kennedy may be a further hint of the strategic nature of JGR’s shifts to the left in divided decisions.

Why He’s Even More Powerful Than Kennedy Now

People have called Justice Anthony Kennedy the most powerful man in the country because of his unique casting of dispositive votes in controversial cases. Chief Justice Roberts, as a swing voter, is even more powerful.  His influence hangs not only on his centrism, but also on his role as the assigner of opinion writing.

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Ordinarily, the most senior Justice voting in the majority assigns the opinion.  That Justice can reserve the assignment for himself, or he can dole out the work to whomever he likes. However, if the Chief ever votes with the majority of his colleagues, the option of penning the opinion of the Court is his to turn down, whether he is the most senior Justice or not. So, when JGR acts as the decisive swing vote, he always has the right to write the opinion himself. When AK swings, he is rarely guaranteed that option.

On a Court where both Justice Kennedy and Chief Justice Roberts are swing voters, the Chief holds more power. That power allows him to craft strategic opinions in the thorniest of cases. It allows him to create a slim majority in order to pacify liberals, then tone down the force of the holding. Is this all a part of John Roberts’s mission to unify and depoliticize the Court? Is John Roberts willing to decide a case a little bit wrong in order to keep the Court from deciding a case a whole lot wrong?

Expect to the Chief to Reveal More of His Identity In The Next Few Weeks

We don’t yet know how important Chief Justice Roberts’s vote will be in blockbusters like King v. Burwell or Obergefell v. Hodges. However, we do know with virtual certainty one important case for which the Chief is authoring the majority opinion.

Only one case remains to be decided from the December sitting, the First Amendment case of Elonis v. United States. The case involves a man named Anthony Elonis who was convicted under a federal criminal law prohibited the transmission of threats in interstate commerce. Elonis posted threats against his estranged wife, among others, on Facebook. (Incidentally, Anthony Elonis was arrested on domestic assault charges several days ago.) The Court must now decide what standard of intent is necessary for the law to be a constitutionally permissible ban on “true threats.”

Only one Justice has not yet written a majority opinion for a case from December — the Chief. Given how SCOTUS divvies up writing duties, JGR will write Elonis. Given how Chief Justice Roberts decides cases lately, what JGR will write in Elonis  is the tricky part. Maybe he’ll write for a united court. But if unanimity splinters, knowing that JGR is writing the majority tells us little.

Is there anybody who would be more surprised if John Roberts, rather than Anthony Kennedy, was the fifth vote with a liberal majority on any of the controversial cases this term? Anybody?  So, let’s stop thinking of Anthony Kennedy as THE swing vote on the Court.

Some will cheer the Chief’s transition to swinging centrist as bold and brave and smart, while others are roiling with disgust and a sense of betrayal. Either way, there’s no point in pretending that John Roberts is something he’s not.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.

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