Is Chief Justice Roberts Moderating From the Front?

A SCOTUSblog Cross-post

Many commentators have complained that Chief Justice John Roberts has shown himself not to be a true institutionalist but rather a conservative ideologue. Hillary Clinton recently provided an example, suggesting that the chief justice had never been an institutionalist at all. There is something right about this view, but it misses that institutionalism must adjust to changing conditions.

In the past eight years, the chief justice has occupied three different institutional roles. Before 2020, and especially after Justice Anthony Kennedy’s retirement in 2018, the chief justice enjoyed being a swing justice. Then, after Justice Amy Coney Barrett joined the court in 2020, the chief became a moderate dissenter. Finally, from about 2023 onward, he adopted a new approach. Inverting the Obama-era trope of “leading from behind,” the chief began to moderate from the front.

In other words, the chief has recently been moderating or slowing down his five conservative colleagues where feasible, including by assigning himself majority opinions; and where moderation is infeasible, he has jumped on these five justices’ bandwagon. This picture is consistent with the chief being both conservative and institutionalist. It also aligns with the self-interested desire to be a great chief justice (or, at least, not a failed one).

Whether the chief’s approach is justified is a harder question, much as questions about judicial strategy and impassivity are generally hard. But the answer is plausibly yes.

I. Before 2020

When confirmed, the chief was widely thought to be both conservative and institutionalist, in the sense of caring about restraint and stability. In tandem, these traits led him to be more moderate than most of his conservative colleagues. The chief oversaw gradualism in cases involving campaign finance and the Voting Rights Act, as in 2007’s FEC v. Wisconsin Right to Life, Inc. and 2009’s NAMUDNO v. Holder. But by far the most famous (or infamous) example is the chief’s surprise vote to sustain the Affordable Care Act in 2012’s NFIB v. Sebelius.

Yet Sebelius was an unusual case, for Kennedy was the normal swing vote in that era. Normally, that is, Kennedy was less conservative than Roberts. The chief could play the role of the swing-vote moderate in NFIB only because Kennedy had sided against the Affordable Care Act’s constitutionality.

Once Kennedy retired in 2018, however, the chief became the court’s most moderate conservative and, therefore, the usual swing justice. The most famous example is probably the 2019 census case Department of Commerce v. New York, in which the chief cast the key vote against the first Trump administration in its attempt to add a question on whether respondents were U.S. citizens.

So, for the first 14 years or so of his tenure, the chief’s behavior was consistent with his being a conservative institutionalist.

II. 2020 to 2022

Things changed rather dramatically when Barrett joined the court, replacing Justice Ruth Bader Ginsburg. This event yielded a six-justice conservative voting bloc, which is widely referred to as the “conservative supermajority.” The chief justice was no longer the median vote on the court. Now there were five justices to his right.

At first, the chief justice continued to vote as a moderate or institutionalist conservative, much as in the prior several years. The starkest examples of this pattern are two cases involving abortion: 2021’s Whole Woman’s Health v. Jackson and 2022’s Dobbs v. Jackson Women’s Health. In both cases, the chief justice broke from five-justice conservative majority opinions, placing him at least partially in step with the court’s liberals.

During this period, however, the chief appeared to have lost control of the court that often bears his name. Perhaps he believed that he could peel off another vote in these cases, if only he proposed the right compromise, or else if he drew a line in the sand. But events proved that hope to be in vain.

At this point, the chief faced two problems. First, he appeared unable to moderate his conservative colleagues in key cases, yielding outcomes that he viewed as both legally wrong and practically harmful. Second, he confronted the possibility of being remembered as a failed chief justice, one who stood uselessly athwart his colleagues. The great chiefs, by contrast, are the likes of John Marshall and Earl Warren – both of whom commanded their courts.

So, at this point in the story, the chief still looked like a conservative institutionalist, but he was no longer a happy one.

III. 2023 to today

During the last few years, the chief has adjusted his behavior in light of his being the sixth member of a supermajority.

No longer does the chief split off in the vain hope of attracting a conservative defector with him, as he did in Dobbs. Instead, the chief tends to write or at least join in the big cases. Sometimes that means ruling in ways consistent with institutionalism, such as in this year’s cases on tariffs (Learning Resources v. Trump) and birthright citizenship (Trump v. Barbara). At other times, however, it means authoring or joining big conservative blockbusters. That pattern is partly a result of his assignment power: as the most senior justice, he always has the authority to give himself the majority opinion when he is part of the majority. The deeper question, however, is why he is making such dramatic use of this power.

Part of that new approach is probably self-interested. The chief, like most of his predecessors and colleagues, has always enjoyed plum assignments. By authoring major rulings like Students for Fair Admissions v. Harvard, striking down affirmative action in college admissions, the chief is ensuring that he will play a prominent role in the history books and, what is more, that he will be remembered as a leader of his court. One might say that, by leaning into his conservativism, the chief has lately been sacrificing some of his institutionalism.

Yet there is also an institutionalist logic to this approach. For by jumping on the conservative bandwagon, the chief has given himself a significant place in shaping the jurisprudence of the last few years. He is probably better able to moderate the supermajority as the author of its major opinions, rather than as a dissenter. Thanks in part to his distinctive role, which affords him seniority, the chief is not just part of the conversation but a focal point for decision-making.

My claim here is necessarily somewhat speculative, because the chief has not (and, realistically, will not) announce this strategy. Let me nonetheless suggest a perhaps surprising example: the presidential immunity decision Trump v. United States. The chief wrote a majority opinion mostly joined by all the conservatives but as to certain important sections not joined by Barrett. The chief thus became the face of an extraordinarily controversial conservative precedent.

But did the chief spearhead the push for maximal presidential immunity? Available evidence suggests that the answer is no. The majority opinion contained several important reservations, yielding a final product akin to pea soup. Why?

Presumably so that presidential immunity maximalists, such as Justices Clarence Thomas and Samuel Alito, could form a majority along with the more moderate conservatives, including the chief. Most saliently, the opinion reserves whether all official presidential acts trigger presumptive or absolute immunity. If that question is eventually posed, the chief and another majority member (perhaps Barrett) may split off to join the three liberal dissenters.

The chief’s opinion also included equivocating language on the key issue of presidential bribery prosecutions. At oral argument, the chief had supported a robust immunity, but he also made comments that cut in favor of preserving bribery prosecutions, as Professor Akhil Amar has noted. The final opinion lost Barrett’s support on this issue, and what the majority opinion said on that topic is charitably described as cryptic.

These ambiguities probably resulted from tensions within the majority coalition, with the chief playing a moderating role. In part for institutionalist reasons, he may have wanted to ensure the existence of an opinion for the court. (Though commentators often assume the opposite, the authors of divided opinions can be the shakiest votes for the result, having been chosen for the task precisely in order to hold the majority together.)

In that regard, Roberts might be compared with Chief Justice Warren Burger, who is often remembered for assigning himself majority opinions even after he had voted the other way at the justices’ conference – a ham-handed means of exerting influence that provoked conflict.

But Roberts’ behavior is more subtle and defensible, in part due to his greater ideological affinity with the majority. When he authors or joins a conservative opinion, he credibly agrees with both its reasoning and its result. To the extent that he slows down or blunts his colleagues, however, he may still generate friction in the building. Some expressions of frustration by other conservatives, such as Thomas, may hint at that tension.

IV. An impassively virtuous chief?

Even if the chief remains a conservative institutionalist, his approach would be questionable. Should the chief want to be part of a team, or care about being its leader? Would the chief exhibit greater integrity or courage by dissenting in favor of institutionalism? Perhaps he would ultimately garner even greater influence and renown by charting a solitary path. Rather than looking to bold leaders like Chief Justice Warren as his role models, for instance, he might instead strive to emulate moderating dissenters like Justice John Marshall Harlan II.

These questions and possibilities call to mind many related debates about judicial strategy, resistance, and dissent, including Alexander Bickel’s brilliant discussion of the “passive virtues,” or the art of avoiding combustible decisions. To my mind, Bickel’s label is a bit misleading. A more accurate and candid label would be the “impassive virtues,” because the traits that Bickel had in mind can be disturbingly callous or apathetic. Far from being merely “passive,” strategic delay is itself a kind of activity – and a potentially harmful one at that.

Roberts can be viewed as adapting the impassive virtues to his role as chief. Bickel focused on the court’s pattern of withholding judgment and eschewing decisions on the merits, so as to garner greater social influence over the long term. In a similar spirit, the chief may be suppressing dramatic dissents of the kind he wrote in Whole Woman’s Health in exchange for a somewhat greater ability to inject ambiguity, gradualism, and restraint into the court’s decision-making, as he did in Trump v. United States. In 2023’s Allen v. Milligan, for instance, he wrote a decision sustaining majority-minority districting in fairly strong terms – only to join Alito’s opinion in Louisiana v. Callais this term effectively overruling that precedent.

The chief’s impassivity also strengthens the court as an institution by strengthening its sense of leadership. And leadership within the third branch has been especially critical in recent years, as federal judges have been threatened with impeachment or worried about defiance of their orders. In the face of a strong or over-strong president, the judiciary can well use a chief justice who is both strong and savvy.

So perhaps the chief is employing a distinctive form of impassive virtue – one that some observers may not view as virtuous at all.

Cross-posted from SCOTUSblog.