Are We Seeing a New Chief Justice Roberts?

Are We Seeing a New Chief Justice Roberts? June 17, 2015

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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