It’s the Roberts Court Now

This is the first time since the 1930s that the chief justice has been the swing vote.

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Last week, the Supreme Court ended one its most hotly contested terms in decades despite issuing the fewest signed opinions in 158 years. Headlines included abortion, LGBTQ rights, immigration, gun rights, criminal justice, religious liberty, and the powers of the presidency. (For a rundown of all the major cases, check out our pre-term guide to the top 10 cases and Advisory Opinions podcast.)

But at a time when political polarization is reaching new heights and both political parties want to energize their voters about the dangers of the other, the most frequent commentary often involved which side was losing more ground in these legal battles. Democrats discussed packing the court after a Biden victory. Republicans debated whether the project of legal conservatism should be abandoned altogether.

If a person can be judged by the enemies he makes, it would be fair to wonder after the October Term 2019 (OT19) whether the Supreme Court has any friends left. But one justice seemed to find himself with friends whichever way he looked.

As Chris Walker, law professor at The Ohio State University, told The Dispatch, “this has been such an unusual and important term at the Supreme Court, and Chief Justice Roberts has been at the center of it.”

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  1. Avatar photo
    Old guy named Bill (OGNB)

    Thank you for your recap and analysis! Based on yours and David's Advisory Opinions podcasts, I'm beginning to think that Justice Kagan is the savviest and maybe the most effective member of the court.

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  2. Rob Strodtman

    The gloss on the Marbury quote, adding "not what it should be," definitely doesn't strike the same tone as the *actual* quote: "It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each."

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    DougAz

    Thanks for sorting it all out Sarah.

    I for one... am always reluctant to "pick a flag".. meaning..do I support Textualism, Originalism and other stereotype shortcut labels.

    In business we would terminate such a commercial person with an inability to communicate!!! We keep it simple. Use bullet points. Strive for clarity as much as possible.

    But alas in the morass (hey a rhyme!) of scholarly Constitutional law discussion.. shortcut words carry below them either an obvious pyramid or inobvious iceberg.

    Textualism has these attributes:
    •
    •
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    and Originalism has these different attributes
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    I know you had an article on this I need to reread...

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      Phil H

      I suspect the whole textualism versus originalism debate is overblown. They are, or should be, complementary ways of deriving a stable objective meaning from a legal (Constitutional or statutory) provision that is not subject to simply what the judge wants the law to be.

      The problem is when one approach is applied in isolation and ends up doing violence to the other approach, as Gorsuch did in Bostock in a narrow textualist analysis that had nothing to do with the original public meaning of "sex" in the 1964 Civil Rights Act.

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      1. Anonymous

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          Phil H

          That's saying that the law was horribly drafted, that it could be read in a way no one intended it to be read. I don't buy that.

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    Victor Clairmont

    This is what happens when the courts want to weigh in on the culture war without sound jurisprudence. They need to stop jumping into the culture war, it seems to be only inflaming the issue in the long run. We need people in the senate and us, to push for changing people's minds and getting constitutional amendments rather than the supreme court thinking they know what's going on in the hearts of America. Let the law do law. Of course, the reason why the law seems to be jumping in it so much is because Congress is to cowardly to do real legislation without majorities these days. Too scared to compromise and take heat from radical bases.

    Saying such, no one in their ideological interests should back off the courts. Republican's would be crazy to throw their hands up and not care about the courts anymore even with their frustration. Same with Democrats. If you don't have a seat at the table, your voice is never heard.

    But the real solution to this is getting American's to engage once again with government and more importantly, each other. This current climate however, doesn't seem to help inspire American's to even want to.

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  5. Doctor Mist

    I’m starting to wonder if Roberts is mainly motivated by a desire for Supreme Court decisions to be close calls. This could be from the same spiritless dynamic that makes Congress reluctant to actually spell out laws rather than just leaving the details to the bureaucrats, or it could be from the self-important feeling that if cases aren’t close then the Court will be seen as a partisan rubber-stamp rather than as the “room where it happens”.
    Either way it does not bode well.

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      Scarlette Tarte

      I think it bodes very well. It is about time some on the court cared about if they actually looked like judges rather than partisan warriors.

      As a liberal, I only found a few of the cases really badly judges. I am fine with Roberts...he at least attempts to TRY to look like he is actually judging on merits of the cases and if they fit the constitution, unlike Alito, Kavanaugh and Thomas who are PURE partisans. Gorsuch appears to be an actual judge as well, though a bit more partisan than Roberts.

      If he keeps this up, he will do very well by the court as one of our institutions.

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      Sarah Isgur vertical-nib Author

      Most folks would say its the opposite--he's trying to avoid 5-4 decisions as much as possible by issuing narrow opinions to attract more votes...which arguably causes more cases to resolve the remaining issues that were left on the table previously.

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        Sad Trombone

        My impression is that Roberts was blindsided by the ferocious response to Citizens United, where the Court went out of it's way to make law on an issue that wasn't argued, that he has been gun shy ever since. This attitude is what led to his sophistry on Obamacare, for example.

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      2. Doctor Mist

        I’m sure you’ve studied him harder than I have. :-) My perception is that he so often seems to be the swing vote, and in the opposite direction than I would have expected. But in that case I guess it was going to be a 5-4 no matter which way he voted. Your theory could fit either of my attempts at mind-reading, which I guess shows the limited utility of mind-reading.

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    Earl King

    Curious that the Court stills seems to make up some laws rather than interrupt them. How "privacy" became the reasons to allow the death of babies is still a mystery.

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    TheKingPrawn

    All the fights are on the right and the liberal justices are just along for the ride at this point. And the court is pissing off both sides of the political spectrum which means they must be doing something right.

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      Ben Lang

      Well said - BTW, not sure if you'd recall, but we used to interact together from time to time on Ricochet - good to see you here :-)

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    Kaitlin Johnson

    My civics teacher from two years ago taught mostly about textualism and originalism in our judicial philosophy unit. He implied that they were the means used to find both conservative and liberal outcomes. Which justices practice a different philosophy and what does that philosophy entail?
    As you can by my question, I’m pretty new to learning about law. It is absolutely fascinating! Any suggestions as to what I can read to learn more?

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      Sarah Isgur vertical-nib Author

      So for example critical race theory was all the rage a couple decades ago (they were called crits) and here's a run down of some others: https://fas.org/sgp/crs/misc/R45129.pdf

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        Kaitlin Johnson

        Thanks so much! That really helps clear that up. I’ve heard of “the living Constitution” or whatever but didn’t know there is a real method of thinking to back that up. I read Thomas Sowell’s A Conflict of Visions just a few weeks ago but I already think of that immediately when I see the difference in emphasis on results vs. outcome.

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        Victor Clairmont

        Argg.....not critical race theory.... ;(

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          Kaitlin Johnson

          Love the sad blink 😂

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    Larry O

    Great read. Thanks Sarah.

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    JDW

    Other than not taking the gun case, I don't really see any ruling that can't be reasoned using textualism. So their may be some backroom deals occurring, I could believe it is just a refocus on textualism.

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      TheKingPrawn

      Scalia's legacy. Heller overshadows almost every opinion not in what is decided but in the manner in which it is decided.

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