“If you can sit down with a family and see your own family in them … then you’re going to work hard for them.” — Barack Obama
With arch-conservative and beer rights activist Brett Kavanaugh replacing Justice Anthony Kennedy, this Supreme Court term appeared bleak at best for liberals. LGBTQ+ rights, DACA, Trump’s taxes, religious freedom, abortion, Affordable Care Act and gun control were all on the docket this term, so most liberals’ expectations ranged from dismal to apocalyptic. However, the crisis was averted, for now, as the four Democratic appointees found an unlikely ally in many cases: the umpire himself, Chief Justice John Roberts Jr.
This term, Roberts sided with the liberal justices on an array of cases ranging from one opposing the administration’s cavalier behavior with dismantling the DACA program to one protecting a woman’s right to choose — for now. However, a deeper look into this surprising term exposes a startling and revelatory look into the philosophy of Roberts and his political gamesmanship. See, while Roberts has been reviled by conservatives as a “secret liberal” and praised by liberals as an “institutionalist,” this public persona is a façade to cover partisanship by manipulating the odd relationship the Supreme Court has with media, the public and his own colleagues, and we cannot allow him to fool us.
Famously, when describing his judicial philosophy during his confirmation hearings, analogizing judges to baseball umpires, Roberts said, “It’s my job to call balls and strikes, and not to pitch or bat.” This bought him the support of 78 out of 100 senators, with nays on Roberts’ confirmation belonging to then-Senators Barack Obama, D-Ill., Joe Biden, D-Del., and Ted Kennedy, D-Mass., along with 19 other votes.
Once Roberts replaced his old boss — noted segregationist William Rehnquist — as Chief Justice, he attempted to maintain a low profile, developing close relationships with his colleagues and cultivating a reputation for warmth, wit and good humor. This reputation for congeniality made Roberts a darling of the media, which lent the chief both credibility and goodwill. However, the trait the media did not give Roberts enough credit for was his savvy. See, one of the main powers of the chief justice is to assign the majority opinions if he or she is on the winning side, so Roberts has sought to deflect the media criticism onto other justices in major rulings like D.C. v. Heller (2008), which held that the second amendment guarantees the right to firearms. While the case drew the ire of the left, most was directed toward Antonin Scalia — who I would normally make a joke about, but it’s just too easy.
As Roberts became more experienced, he began employing more overtly political tactics. For example, in National Federation of Independent Business v. Sebellius (2012), Roberts had the opportunity to deal a deathblow to Obamacare, but he sided with liberals, concluding that the law’s controversial individual mandate was constitutional, which became the headline. However, the decision’s arguably more consequential precedent was his conclusion that the law’s mandatory Medicaid expansion was unconstitutional, which deprived millions of people across the country, especially in red states, of access to health care. Further, the logic of his precedent could be applied to many liberal priorities at the federal level in the future concerning everything from clean energy to free college.
While Roberts’ media manipulation and political savvy are significant, they are usually overcome by two things: religion and racism. These are weak spots in Roberts’ arsenal, as, since he is a wealthy white Catholic man, he has never had to consider the issues of race or imposition of religion in his daily life, so he simply cannot relate. Therefore, he is completely tone-deaf to these issues, which has never been more apparent than in his majority opinion in Shelby County v. Holder (2013) — one of the worst decisions in the Supreme Court’s history. I could describe the gross incompetence expressed by one of the most powerful men in this country, but, honestly, his reiteration from a 2009 opinion does it best:
“Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”
If you don’t speak conservative nonsense, I can gladly translate. Essentially Roberts is patting himself and white people in the South on the back saying, “Congrats guys, we did it. Racism is no more,” which is just about the most ridiculous — and statutorily illogical — point that I have ever read. Needless to say, this decision, which gutted Sections 4 and 5 of the Voting Rights Act of 1965, led to a wave of laws targeted at decreasing minority voter turnout across the country, especially in the South.
With the notable exceptions of Obergefell v. Hodges (2015), which legalized gay marriage across the country, and Whole Women’s Health v. Hellersteadt (2016), which acts to maintain protections for a woman’s right to choose, the Supreme Court tacked conservative in most every consequential case after 2010. While these small, steady wins satisfied most legal conservatives, the evangelical base hungered for further victories. Moreover, many Democrats in the Senate and on the campaign trail began advocating for altering the structure of the Supreme Court. This national climate set the stage for the term in 2020 with Roberts, who is a bona fide conservative, at the center of the court and several consequential cases facing the justices.
This term, Roberts’s cunning was on full display in several cases, but the pinnacle of his strategic prowess was on the issue of LGBTQ+ rights. In Bostock v. Clayton County (2020), despite the chief voting against gay rights in Obergefell and other previous decisions, he provided his vote to pad the 6-3 majority. This vote secured the ability of conservative Neil Gorsuch to write the narrow majority opinion rather than allowing one of the court’s liberals to author an expansive one. Then, in a much lower profile case, Our Lady of Guadalupe School v. Morrissey-Berru (2020), Roberts commissioned conservative Samuel Alito — who spent most of the term writing whiny dissents making me question his devotion to the rule of law and overall sanity — to write the opinion allowing LGBTQ+ individuals to be fired by religious organizations due to the ministerial exception. Thus, he and the conservatives dealt a victory to liberals, but they strategically undermined it at every turn, which is the same pattern that every liberal “win” this term has followed.
This term, Roberts has played political games while still making time to disenfranchise minority voters and help reintegrate religion into public life. Despite this, many political pundits who either lack expertise about the court or are too optimistic to view objective facts as such believe that this term marks a pivotal change of heart for Justice Roberts. Spoiler alert: It doesn’t. Any analysis scratching even slightly below the surface of these opinions conveys Roberts’ true motivation, which is to save face for the court at all costs, even if that means losing in the short term.
Keith Johnstone can be reached at keithja@umich.edu.