Adam White has written an op-ed in the New York Times describing Chief Justice John Roberts as still the dominant force on the Supreme Court and adds that that is a “good thing.” He widely praises “Roberts’s style of restraint amid the court’s pronounced conservative turn” and touts the supposed virtues of the Court having “at least one self-consciously institutionalist justice.” Specifically: “He sees judicial self-restraint and incrementalism as necessary for limiting the court’s own encroachment on American politics.”
I have admired Adam’s work since we were co-clerks, but I respectfully dissent.
True institutionalism is that which keeps the Court within the bounds of the law. Anything else over the long term will not help the institution, although it may win applause from certain quarters. That applause largely comes from people trying to butter the justice up to win him in future cases, from his colleagues on the Court (especially Elena Kagan) to the legal commentariat. And it is short-lived: Witness the liberal outrage at Justice Anthony Kennedy’s retirement. Even those who liked the results of Kennedy’s decisions are not talking about his overarching vision of the Constitution as the model for the next generation. The same is true of another former swing justice, Sandra Day O’Connor. Sadly, it is not uncommon to see students of recent history misidentify the more doctrinaire Ruth Bader Ginsburg as the first woman to serve on the Court.
When identifying Roberts and his influence, which Roberts are we talking about? During his first six years on the bench, he had a commendable record as a constitutionalist. When it was time to decide the constitutionality of Obamacare in 2012, the chief justice voted in conference to strike down the law, consistent with his early record, only to change his vote for reasons that were as transparently political as we have ever seen on the bench. In 2020, he flip-flopped in major cases about abortion and immigration. That same year, the eloquent dissenter who refused to rewrite the Constitution to incorporate same-sex marriage in 2015 joined a rewriting of the Civil Rights Act of 1964 to incorporate sexual orientation and gender identity.
Unfortunately, Roberts’ brand of institutionalism seems to be a proxy for political calculation at the expense of the rule of law. It may carry short-term appeal, but over the long term, it leaves a bitter aftertaste, to the extent it is remembered at all. Far from limiting the Court’s encroachment on politics, this approach extends it.
Roberts is known to be concerned with his place in history. But the most influential justices, for better or worse, do not follow this brand of “institutionalism.” Think of justices like Earl Warren and William Brennan on one end of the spectrum and Antonin Scalia and Clarence Thomas on the other. For all their differences, they were bold in pursuing their visions of the law and did not behave like technocrats with a narrow view of the moment they occupied.
This past term, Roberts had the opportunity to be part of reversing one of the greatest constitutional errors in the history of the Court, Roe v. Wade. Instead, he penned a separate concurrence joined by no one. White suggests the opinion was defensible on grounds that the Court should have ruled more narrowly than on the overarching right to abortion, but there was no cogent or intellectually honest way the Court could have ruled on the Mississippi abortion statute at issue without addressing the standard of review in abortion cases more broadly. Indeed, Roberts’ opinion did propose replacing the standard in prior abortion decisions with an overarching rule of his own based on whether a restriction left women a “reasonable opportunity” to abort. That approach did not win any votes because it was extraconstitutional and too muddled to offer people clear direction on the law.
Roberts missed this historic moment, and it is unlikely that another of that magnitude will come during his or his colleagues’ tenures. His rationale for abstaining from the Court’s opinion was not truly legal. It was driven by external political or policy considerations, none of which the chief justice has the authority or even the expertise to evaluate.
This moment of history truly belonged more to a justice no longer on the Court—Scalia—and to Thomas than to the current chief justice. The late jurist and the current senior associate justice did more than any other justices in living memory to change the way we think about the law, including in sharp, unequivocal takedowns of Roe. So this is less the Roberts Court than the Court of the five originalists: Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They are the ones who withstood the most intense political pressure—indeed, threats to their own lives—to forge the latest chapter in the history of the Court. Like Scalia, they embraced constitutionalism, not “institutionalism” of the Roberts variety. And that is ultimately best for the institution of the Court.