Bench Memos

Law & the Courts

The Real John Roberts

The Chief Justice is a minimalist, not a liberal

Earlier this week, I had an op-ed in the New York Times, This Is the Real John Roberts,” explaining why the voting pattern we have seen from Chief Justice John Roberts should not be too surprising. While there are exceptions, I think the Chief Justice has acted consistently with the “conservative minimalism” that has marked his time on the Court. Since joining the Court, the Chief Justice has generally sought to avoid broad, sweeping decisions with disruptive effects, and we have seen this same tendency throughout the current term.

Here is an excerpt:

As a judicial minimalist, Chief Justice Roberts seeks to resolve cases narrowly, hewing closely to precedent and preserving status quo expectations. If a litigant seeks an outcome that will transform the law or produce significant practical effects, his vote will be harder to get. At the same time, he takes a strict view of “justiciability” — that is, whether a case should be in federal court at all. He is also reluctant to bless new avenues of litigation for those who seek to use the courts to drive public policy

He is generally reluctant to overturn decisions or to strike down federal laws. Thus he often reads precedents narrowly or construes federal statutes in ways that will avoid constitutional problems. Since he became chief justice, the Supreme Court has overturned its own precedents and struck down federal laws at a much lower rate than it did under Chief Justices Earl Warren, Warren Burger or William Rehnquist.

Where the chief justice concludes a statute is unconstitutional, his aversion to disruptive decisions leads him toward narrow remedies, including an aggressive approach to the doctrine of severability, under which the court excises as little of a law as possible to cure a constitutional defect.

This op-ed draws (and builds upon) an article I wrote several years ago for the Cardozo Law Review on what I called Roberts’ “Anti-Disruption Statutory Construction.”

I should be clear that my account is not meant as either a critique or a defense. Rather, it is an attempt to take John Roberts’s jurisprudence on its own terms and describe it fairly and accurately. After all, if we are going to criticize his jurisprudence, we should be clear about what it is we are criticizing beyond discrete case outcomes. A fair account of one’s subject should be the prelude to critique.

Among the criticisms that I think can (and should) be made is that the Chief Justice’s concern about disruption has made him too wary of overturning precedent and too willing to massage and stretch statutory text in ways that undermine core rule of law values. Stability in the law is important, but so are error correction and the need to take statutory text seriously.

One criticism that I do not think is accurate is the claim that John Roberts is “liberal” or a “moderate.” I think such descriptions fail to account for the overall trajectory of his decisions, and misidentify what drives him to embrace specific holdings in given cases.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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