Are We Seeing a New Chief Justice Roberts?

Adam Winkler, a law professor at UCLA, has an interesting article about Chief Justice John Roberts and the fact that he appears to have made a fairly significant turn to the left, and not just in the first Obamacare case. These stats are pretty surprising:

From 2005—the year he was appointed—until 2012—the year of the first Affordable Care Act decision—Roberts was a reliable vote on the court’s staunch conservative wing. In controversies from abortion to campaign finance to guns, Roberts sided with Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy. The 2012 health care case was the first time Roberts had ever voted with the liberal side of the court in a 5–4 decision. Lately, however, we’re seeing a very different Roberts. Last term Roberts surprised many by breaking left on a few major cases. And so far this term, Roberts has voted with Stephen Breyer (90 percent), Ruth Bader Ginsburg (85 percent), and Sonia Sotomayor (83 percent) more often than he has joined Thomas (66 percent), Kennedy (74 percent), and Alito (77 percent). And that isn’t just on minor cases. He’s recently sided with the liberals in cases on issues that typically divide the court along ideological lines, includingcampaign finance and anti-discrimination law.

Winkler pinpoints one particular case that may have humbled Roberts a bit:

Roberts may also have learned a similar, valuable lesson from a far less familiar ruling: House v. Bell, from Roberts’ very first term on the court. Few remember the facts of this case—Paul House, a man sentenced to death, won the right to file a habeas petition in federal court—but you can bet Roberts will never forget it. Joined by Scalia and Thomas, Roberts wrote a partial dissent that contemptuously dismissed House’s claims of innocence.* To House’s contention that his scratches and bruises were from his construction work and a cat’s claws, Roberts derisively replied, “Scratches from a cat, indeed.” Several years later, however, prosecutors dropped all charges against House, who was exonerated by DNA evidence.

House is the type of case that should cause any justice to second-guess his or her own intuitions and judgments. Certainly it offered Roberts an object lesson in the perils of judicial overconfidence: Don’t be so certain you are right even when you are certain you are right. On some issues, like voting rights, Roberts’ views may be so longstanding and firmly held as to be immune to moderation. And some of his seemingly liberal votes may be strategic, part of what legal scholar and Slate contributor Richard Hasen calls Roberts’ “long game.” Yet somehow the spirit of compromise, if not the ghost of Paul House, haunts the chief justice’s chambers.

No one doubts that Roberts leans right jurisprudentially. Yet over the past two terms, we’ve seen evidence that Roberts has become a bit more circumspect of his own jurisprudential views and perhaps more wary of those of his conservative colleagues. Carrie Severino of the right-leaning Judicial Crisis Network says, “There certainly seems like a more consistent pattern on the part of Scalia, Thomas, and Alito of being really conservative to the core.” In this way, we might see the conservative wing of the court in a similar light as the intramural wars plaguing the Republican party in general: Mainstream conservatives find themselves trying to fight off the more radical, burn-down-the-house Tea Partiers. Some on the court seem less interested in incremental steps than infernos.

If these patterns remain — and we may found out in the next two weeks whether they will with two major rulings, King v Burwell and Obergefell v Hodges — it would be a significant shift for the court. And it would be a continuation of a long pattern for justices. There are very few, perhaps no, instances where a justice has moved to the right once on the court (though one could make an argument that Scalia has done so, pushed, or pulled, by Thomas). But there are lots and lots of instances where a justice has moved to the left. In just the last 40 years or so, that would apply to Lewis Powell, John Paul Stevens, Harry Blackmun, David Souter, Sandra Day O’Connor, William Brennan. Even Chief Justice Rehnquist turned to the left in his latter years on the court.

Conservatives have tried very hard to avoid that happening over the last 30 years. That is partly the reason why the Federalist Society was created, to bring up a generation of conservative judges and put them into the pipeline for Supreme Court nominations. Ironically, Roberts himself was one of the people who vetted potential justices for that very purpose during the Reagan/Bush years. And now he may well be doing the very thing he tried to prevent from happening. This would be good news.

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  • colnago80

    There are very few, perhaps no, instances where a justice has moved to the right once on the court (though one could make an argument that Scalia has done so, pushed, or pulled, by Thomas).

    Felix Frankfurter?

  • http://drx.typepad.com Dr X

    Maybe that’s the explanation. Another possibility that can account for a shift: alienation from one’s identity group for various reasons (e.g., change of life circumstances such that it undermines identification with the group, disturbed by group behavior, attack from within the group, outright expulsion) sometimes trigger wholesale ideological shift. Maybe Robert’s has seen enough sausage making up close and he is starting to really dislike the sausage makers.

    This isn’t to say that both things–the thing described in the post and de-identification-can’t be in play.

  • http://www.facebook.com/eo.raptor.3 eoraptor

    As for turning to the left, don’t forget my hero, Earl Warren.

  • http://motherwell.livejournal.com/ Raging Bee

    Another Federal judge forced to admit that reality does indeed have a liberal bias.

    That, and maybe Scalia’s buffoonery is starting to turn him off to “conservatism.”

  • http://www.facebook.com/eo.raptor.3 eoraptor

    During the deliberations on Roberts’s nomination, I read some of his writings, and some of the reviews of his career. I came away with the impression that, although a conservative by nature, he has a truly deep appreciation for The Law — meaning law as a human enterprise — and the law’s role in shaping society, and even humanity. Consistent with that love, he seemed to be one who focused on (and appreciated) the deep thinking that went into most of the significant decisions by SCOTUS, even the ones he disagreed with. Thus, his joining with the liberal wing of the court in the original Obamacare case, didn’t really surprise me. Further, I believe both Hobby Lobby, and Citizens United, will be overturned during his tenure, and that he will be joining in those possible future decisions.

    Oh, and one more thing. How can you not like a person who uses, “vox clamantis in deserto” in a letter to Reagan’s presidential staffers?

  • Reginald Selkirk

    House is the type of case that should cause any justice to second-guess his or her own intuitions and judgments.

    And here’s another: What now, Justice Scalia?

    You (Scalia) mocked him (Blackmun) for this stance in an opinion concurring with the majority, invoking as justification for capital punishment the horrific 1983 case of an 11-year-old girl who was raped then killed by having her panties stuffed down her throat. “How enviable a quiet death by lethal injection,” you wrote, “compared with that!”

    A few months later, the very case you had referenced came before the court. Henry Lee McCollum, a mentally-disabled man who was on death row in North Carolina after having been convicted of that rape and murder, applied to the court for a review of his case. You were part of the majority that rejected the request without comment.

    As you have doubtless heard, it now turns out Mr. McCollum was innocent of that crime. Last year, he and his also-mentally-disabled half-brother Leon Brown (who had been serving a life sentence) were exonerated by DNA evidence and set free, A few days ago, Mr. McCollum was pardoned by North Carolina Gov. Pat McCrory…

    Will Scalia have a change of heart? Of course not, he doesn’t have a heart.

  • Chiroptera

    Raging Bee, #4: That, and maybe Scalia’s buffoonery is starting to turn him off to “conservatism.”

    I was wondering the same thing when I was reading the post.

  • http://www.facebook.com/hmoulding Helge

    @4 “maybe Scalia’s buffoonery” ~ yep, a thinking man’s conservative Scalia is not, and he’s been working hard to establish his bonafides as one of the dumbest people who’s ever served on SCOTUS.

  • Kevin Kehres

    @6 Reginald Selkirk

    Will Scalia have a change of heart over Henry Lee McCullum?

    Henry Lee McCullum is black. The question answers itself.

  • http://drx.typepad.com Dr X

    Richard Posner has briefly discussed moving left.

    Posner expressed admiration for President Ronald Reagan and the economist Milton Friedman, two pillars of conservatism. But over the past 10 years, Posner said, “there’s been a real deterioration in conservative thinking. And that has to lead people to re-examine and modify their thinking.”

    “I’ve become less conservative since the Republican Party started becoming goofy,” he said.

  • dmcclean

    Whenever there is a new one he scares everyone by dressing up in a cape and saying “I am the Dwead-Justice Woberts…”

  • http://motherwell.livejournal.com/ Raging Bee

    Helge @8: I saw a quote from Scalia saying that no one would arrest Jack Bauer for torturing terrorists to save America. Not sure if I’ve ever heard of a judge supporting torture by citing a fictional character in a TV show before…

  • D. C. Sessions

    Interesting idea. I had this flash of billboards across the South, but especially Texas:

    IMPEACH JOHN ROBERTS!

  • moarscienceplz

    If a person has any capacity to move to the left at all, I would have thought that simply sitting in judgement on a few criminal cases in a state court would do the trick. I don’t see what it is about sitting in the rarefied atmosphere of the Supreme Court that could affect a person more than sending a person to prison while looking them directly in the eye can. However, it is a fact that SC Justices have done just that many times. I hope this is indeed the case with Roberts, but after seeing what he did on Citizens United, I ain’t holding my breath.

  • D. C. Sessions

    I hope this is indeed the case with Roberts, but after seeing what he did on Citizens United, I ain’t holding my breath.

    Citizens United is, unfortunately, not particularly bad law. If you want a far better example, try Shelby County.

  • garnetstar

    I’ve read that Roberts is very concerned with his court not being seen as “political” (yeah, good luck with that). Scalia’s increasing irrationality and naked partisan politics may be driving Roberts to be more of a counter-force.

  • eric

    There are very few, perhaps no, instances where a justice has moved to the right once on the court (though one could make an argument that Scalia has done so, pushed, or pulled, by Thomas). But there are lots and lots of instances where a justice has moved to the left.

    Well, liberalism is correlated with greater exposure to different cultures and peoples. I wonder if that has anything to do with it. I imagine that both his prior role as D.C. Circuit judge and his current role as SCOTUS judge exposes him to a much wider variety of people, cultures, and issues than his childhood (Indiana private school) upbringing.

  • briandavis

    @6 Reginald Selkirk:

    Will Scalia have a change of heart?

    Does anyone have standing to file the petition?

  • http://drx.typepad.com Dr X

    Well this hypothesis just withstood an important test. This makes me hopeful about the same-sex marriage ruling to come.