Chief Justice John Roberts has broken with his conservative brethren and joined liberal justices several times in recent weeks, in cases from abortion, to asylum policy to the death penalty.
The pattern, reinforced again on Wednesday, has generated headlines and questions about what to make of Roberts and whether the Supreme Court will suddenly lunge left.
The answer is no. It is unlikely the inscrutable Roberts has shed his conservative instincts after nearly 15 years as chief justice. And while he has plainly inched leftward in some cases, the Supreme Court has not.
His moves, including this week in a death penalty case, have been incremental rather than ground-breaking. They are best seen in the context of last year’s retirement of centrist-conservative Justice Anthony Kennedy and what might have been.
Consider the alternative: If Roberts was consistently voting with the right wing, a change in the law would already be evident.
Without Roberts’ recent votes with liberals, for example, the justices would have retrenched on their abortion rights precedent and separately endorsed refugee restrictions that a leading conservative judge had said would consign asylum eligibility to “the hollowest of rights.”
The actions of Roberts, now at the middle of the court’s ideological spectrum, reflect the instincts of a chief justice who wants to avoid wild fluctuations in the law, as well as criticism of the court as politically motivated in an increasingly polarized America.
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In a recent public appearance, the chief justice lamented the use of “conservative” and “liberal” labels for the justices. The 2005 appointee of Republican President George W. Bush emphasized that the justices, once on the bench, operate unlike elected officials in the other two branches of government.
“We are not just another part of the political process,” he said in a February 6 talk at Belmont Law School in Nashville. “People need to know that we’re not doing politics. They need to know that we’re doing something different, that we’re applying the law.”
The current Supreme Court session is still relatively young, and a greater test of the 64-year-old chief justice could come in higher-stakes cases, for example, on religious monuments, partisan gerrymandering and a proposed citizenship question on the 2020 Census.
During oral arguments Wednesday over a 40-foot cross on public land in Maryland, Roberts’ questions suggested he was ready to reinforce his prior position on church-state cases that would separate him from the liberals and favor religious monuments on public grounds.
Roberts already has aligned with his four conservative colleagues in two other 5-4 disputes this session. Joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, Roberts voted in January to allow the Trump administration’s military ban on most transgender service members to take effect while litigation on was underway.
Those five also ruled against a convicted Alabama murderer who was Muslim and wanted the court to postpone his execution so he could have an imam at his side. Under the Alabama policy, a Christian prisoner could have been accompanied by a Christian minister in the execution chamber.
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Dissenting Justice Elena Kagan, joined by fellow liberals Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, wrote that the majority’s decision was “profoundly wrong” and unconstitutionally permitted the state to show preference to one religion over others.
Forestalling the future?
After Kennedy retired last year and was succeeded by Kavanaugh, who had a more reliable record as a conservative on a Washington, DC-based appeals court, the Supreme Court seemed destined to tilt more rightward.
Kennedy had been the decisive vote to uphold abortion rights and university affirmative-action, in 2016, and had written the court’s 2015 decision declaring same-sex marriage constitutional. Roberts had dissented in all cases.
Now Roberts appears to be trying to counter the potential impact of the Kennedy-to-Kavanaugh succession.
His new distance from fellow conservatives became evident in December when Roberts voted with liberal justices to reject a new Trump administration policy denying asylum to people who cross over the southern border between ports of entry and come into the country illegally.
That Supreme Court action kept in place a lower court injunction while litigation on the merits of the new policy played out. The 9th US Circuit Court of Appeals had upheld the injunction, in a forceful order by Appeals Court Judge Jay Bybee, who said asylum would become “the hollowest of rights” if foreigners fleeing persecution faced new US rules that conditioned refugee eligibility on where the person entered the country and other criteria unrelated to the asylum right.
Trump had criticized the US district court judge who first ruled against the asylum policy in November as an “Obama judge.” In an unusual rebuke of Trump, Roberts issued a statement that said: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
But on the Supreme Court, it just so happens, the five conservative justices were appointed by Republican presidents, the four liberals by Democratic presidents.
In a separate December case, Roberts voted with the liberal justices to reject arguments from Republican-led states that did not want to provide Medicaid funding to Planned Parenthood clinics for women’s health services. Dissenting were Thomas, Alito and Gorsuch. (Kavanaugh joined the Roberts’ majority to reject the petition.)
“What explains the court’s refusal to do its job here?” Thomas wrote in his dissent. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’ … Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty.”
The case illustrated Roberts’ current effort to avoid potentially difficult social dilemmas. It is an endeavor that appears to be shared by Kavanaugh, who has tried to avoid the limelight during his early months on the court. In tumultuous confirmation hearings last fall, Kavanaugh faced accusations of sexual assault from his teenage years. He denied the claims and chalked them up to partisan opposition.
After those hearings, Roberts spoke out at the University of Minnesota, referring to “the contentious events in Washington of recent weeks” and – as he did recently at Belmont Law School – highlighted the differences between the judicial branch and political branches.
Perhaps one of Roberts most surprising votes with liberals this session was cast on abortion. In dispute was whether new Louisiana state restrictions on physicians who perform abortions could take effect. The Supreme Court had invalidated similar regulations on physicians in a 2016 Texas case. Justice Kennedy was the crucial fifth vote in that dispute, and Roberts was among the dissenters.
The Louisiana case did not constitute a test on the merits of that state’s law, but rather whether a lower appeals court decision allowing it to take effect could stand. The 5th US Circuit Court of Appeals, which had approved the Louisiana restrictions that would have led to clinic closings in the state, appeared to flout the reasoning of the Supreme Court’s 2016 ruling.
Based on similar scrutiny for a lower court’s interpretation of Supreme Court precedent, Roberts on February 19 joined the four liberal justices to rule for a convicted Texas murderer challenging his death sentence. The majority said the Texas Court of Criminal appeals had misapplied Supreme Court standards set down in an earlier dispute over Bobby James Moore, who contends his intellectual disability makes him ineligible for the death penalty.
Roberts had voted against Moore when his appeal was before the justices in 2017. At that time, Justice Kennedy had joined the four liberals to reject Texas’ outdated medical standards for determining a defendant’s intellectual disability, over the dissenting views of Roberts and the other conservatives.
In Moore’s new case in February, Alito, joined by Thomas and Gorsuch, dissented. To make his points, Alito repeatedly invoked Roberts’ statements against the convict from the 2017 dispute. (Kavanaugh, who had not been on the court for the 2017 go-round, joined Roberts and the liberals in the new case of Moore v. Texas.)
Alito: making ‘a mockery’
On Wednesday, Alito again wrote for the conservative dissenters when Roberts joined the liberals to rule that the Eighth Amendment may prohibit executing an Alabama prisoner who suffers from dementia. Vernon Madison was convicted of killing a police officer in 1985; in recent years he has suffered a series of strokes.
The majority returned the dispute to a lower court for a hearing on the Madison’s competency, that is, whether he understands why the state wants to execute him.
This time, Alito was indignant. Joined by Thomas and Gorsuch, Alito said the majority had made “a mockery of” court procedure because, he said, it resolved a question related to Madison that was not directly before the court. He said the majority essentially second-guessed lower court judges on Madison’s competency and “should own up to what it is doing.”
In an opinion by Kagan, the majority disputed Alito’s characterization. Kagan anchored Wednesday’s ruling in a 2007 Supreme Court precedent, wrote narrowly and ultimately prevented a deadlock, which may have been of concern to Roberts.
When the case of Madison v. Alabama was heard in October, Kavanaugh had not been sworn in. If Roberts had joined with the conservatives, the vote could have been 4-4. Madison would have lost the case and his lawyers, perhaps a final chance to argue that his mental illness entitles him to be spared execution.