Many practitioners, to say nothing of members of the press, recently have come to ask: “What’s up with John Roberts? Has he become a liberal?” This, of course, started with National Federation of Independent Business v. Sebelius, where the Chief Justice voted with the four liberal justices to uphold the Affordable Care Act. But it has continued, for example, in the two recent Trump subpoena cases rejecting the President’s exaggerated claim of Executive Branch immunity and in the two Louisiana cases, striking down certain abortion provider regulations.
No liberal by any means, and much more a conservative in the traditional jurisprudential sense of the term, Roberts is, at the ground, an institutionalist concerned with the durability of the law and the maintenance of respect for the Court. He strives to have the Court decide cases on the narrowest grounds possible and that create the least dislocation to the coordinate branches of government and the generally-accepted expectations of the citizenry. The 2019 term just concluded, has shown him to have succeeded remarkably in achieving that end.
Indeed, of the nearly 60 cases decided by the Court between last October and the present, the Chief Justice was in the majority in all but two of them. He wrote several of the key majority opinions setting forth positions that were antithetical to fundamental arguments advanced by the Trump administration, and he only wrote one dissenting opinion in a case of relatively little national consequence. Put another way, in virtually every case decided by the Court this past term, the Chief Justice himself either wrote the majority opinion or assigned its writing to another Justice of his selection. And most of the decisions that might have been the most controversial among the general public, save for two related reproductive rights cases, were decided by clear majorities, not the 5-4’s we’ve experienced often in the past.
We now find the Chief Justice standing astride what now legitimately and distinctly can be described as “the Roberts Court,” and a range of decisions of that Court, often written by the Chief Justice himself, gives the lie to the oft-reported assertion that the Justices are mere “politicians in robes,” ruling in lockstep fealty to the political preferences of the presidents or parties that appointed them. Let us examine several of the cases that bear out this point.
Perhaps the primary example of the view that there is a material difference between jurisprudential conservatism and nominal political conservatism (or the preferences of the President) can be found in the opinion written by Justice Gorsuch, and joined by the Chief Justice, in Bostock v. Clayton County, which holds that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964 (“Title VII”). Employing the fundamentally conservative principle of textualism, the Court concluded that nebulous legislative history was irrelevant to the Court’s proper and limited role of applying the terms that Congress actually wrote into the law. Opposition to an expansive reading of Title VII was a point of major interest to the president and his Department of Justice which argued strenuously to the Court that sexual orientation and gender identification were unprotected by Title VII. They were undone by the opinion of one of their own nominees, with the assistance of the Chief Justice.
The current administration’s approach to administrative law matters took another in a series of blows when the Court, in an opinion written by the Chief Justice, blocked the government from terminating the controversial Deferred Action for Childhood Arrivals program (“DACA”), preserving administrative protections for hundreds of thousands of young unauthorized immigrants who had lived most of their lives in the United States. In his typical fashion, the Chief Justice avoided actually ruling on the validity of the DACA program, but simply remanded the matter to the Department of Homeland Security for further proceedings.
This decision is the latest in a line of cases where the Court has refused to defer to the determinations of administrative agencies that either fail to follow the requirements of the Administrative Procedure Act (“APA”) or fail to make a good faith effort to comply. And again, we find the allegedly “conservative” President thwarted by the conservative jurisprudence of a Republican appointee.
In the one case where the Chief Justice actually wrote a dissenting opinion, the administration’s position was rejected by a majority of the Court led by Trump appointee, Justice Neil Gorsuch. McGirt v. Oklahoma raised the question of whether certain eastern Oklahoma land allocated for the Creek Indian Nation in the 1800s is still a reservation for purposes of a federal law that requires some serious crimes committed on a reservation by or against Indians to be prosecuted federally. In a 5-4 opinion in favor of the claim of the Creek Nation, unsurprisingly written by Justice Gorsuch, who has involved himself actively in Indian matters in the past, but also joined in by all four Court liberals. This was only one of the two cases in which the Chief Justice was not in the majority during the term. But it also is one where his dissent highlighted an ameliorating way out of the judicial thicket – the continuation of state-based negotiations and an invitation to Congress to change the jurisdictional law.
Donald Trump has, at the very least, equivocated in answering questions about whether he intends to honor electoral norms this November. He might, therefore, have expected that at least the Court’s conservative Justices would have decided Chiafalo v. Washington and Colorado Department of State v. Baca differently. Instead, all of the Justices joined in upholding state “faithless elector” laws, which require presidential electors to vote in the manner that state law dictates.
Measured judicial independence from political influence was particularly evidenced in the two presidential subpoena cases decided at the very end of the term. Trump v. Vance concerned whether the Manhattan District Attorney can obtain President Trump’s tax returns and other records in connection with an ongoing grand jury investigation into the affairs of multiple parties, including Trump. In an opinion written by the Chief Justice, and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, but concurred in as to the judgment by Justices Kavanaugh and Gorsuch. the Court held that the Constitution’s Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.
In a very real sense, cementing a principle that should endure across future administrations, the Court tooketh away the president’s imperial argument, but moderating its holding, the Court also gaveth. The key sentence in the majority opinion is this: “Rejecting a heightened need standard does not leave Presidents with ‘no real protection.’ To start, a President may avail himself of the same protections available to every other citizen.” In other words, we have a president, not a king, but that president has the same rights afforded to everyone else. Thus, the Court remanded the case to the Second Circuit, which will allow the President to assert generally available grounds as well as those that might have a constitutional basis. In doing so, the Chief Justice brought along with him and the four liberals two conservative Trump appointees (Gorsuch and Kavanaugh), creating a strong majority supporting the underlying principle affirming that the President is not above the law, but also creating a regime that allows applicable defenses to be litigated in a timeframe that is unlikely to create disruption before the upcoming November election.
Trump v. Mazars USA LLPI did much the same thing, this time resolving the question of whether congressional committees have the authority to subpoena the President’s accountants and creditor banks for financial documents and records belonging to the President and his businesses. Once again, the Chief Justice, joined by the same six Justices who were with him in Vance, wrote an opinion first recapping the Court’s holdings in United States v. Nixon, that a federal prosecutor could obtain information from a President despite assertions of executive privilege, and Clinton v. Jones, that a private litigant could subject a President to a damages suit and appropriate discovery obligations in federal court. But the Chief Justice also noted that the instant case is different (as indeed is Trump v. Vance) in that here there is no judicial proceeding involved, only subpoenas from congressional committees expressing varying justifications.
The Chief Justice reminded that Congress has no enumerated constitutional power to conduct investigations or issue subpoenas, but the Court has held that each House has the power “to secure needed information” in order to legislate. Such subpoenas, to be valid, therefore have to derive from a specific legislative purpose and not be related to “law enforcement,” which is the prerogative of the other two branches of government, not the Legislature. Accordingly, again serving a moderating function, the Chief Justice laid out a four-part balancing test that would allow lower courts to take account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information. The case, therefore, has been remanded for further proceedings. Again, the Court has reaffirmed the principle that our president is not a king who somehow is above the law, but has cabined its holding to require congressional clarity in its subpoenas and lower court analysis of separation of powers issues. And, with the leadership of the Chief Justice, the Court has done this in a manner that likely will not intrude on election-related matters.
Seila Law, LLC v. Consumer Financial Protection Bureau is a victory for the jurisprudential conservative view of the unitary executive and the place of the so-called “Fourth Branch,” the administrative agencies, in the separation of powers universe. In Seila, a 5-4 conservative majority held with respect to the Senator Elizabeth Warren sponsored Consumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent, established following the 2008 financial crisis under the Dodd-Frank Act, that its provision that its single Director could only be removed by the President for “inefficiency, neglect of duty, or malfeasance in office,” was an unconstitutional violation of the separation of powers.
However, the Chief Justice brought along all of the liberal Justices as to the result of the case holding against the administration that while the Director’s statutory removal protection was unconstitutional, the failed removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may, therefore, continue to operate, albeit with its director serving at the pleasure of the president.
The same sort of result was dictated by Justice Kavanaugh’s opinion concerning an exception to the Telephone Consumer Protection Act of 1991 (TCPA) in Barr v. American Association of Political Consultants. Holding that an exception for government-debt collection to the TCPA’s ban on robocalls to cell phones was an unconstitutional content-based speech restriction that could not withstand strict scrutiny, the Court invalidated the government-debt exception but again applied traditional severability principles to maintain the robocall restriction itself.
These severability holdings are matters of great importance, given the fact that the same sort of issue is going to come up next term in the case of California v. Texas, concerning the constitutionality of the Affordable Care Act following the elimination of the mandate provision that was at the heart of the decision in National Federation of Independent Business v. Sebelius. One of the key provisions that the Court will decide in the instant case is whether the mandate provision is severable from the rest of the ACA, or stated otherwise, whether the ACA can survive in its absence. The liberals have their ducks in a row and they very well may be led by the Chief Justice.
Finally, another Trump administration defeat attributable to the Chief Justice came in the combined cases of June Medical Services v. Russo; and Russo v. June Medical Services concerned a Louisiana’s law that was essentially identical, to the Texas “admitting privileges” law at invalidated in Whole Woman’s Health v. Hellerstedt, and that required any doctor who performs abortions to hold “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced” that it was unconstitutional because (among other things) it imposed an undue burden on the right of their patients to obtain an abortion. In an opinion written by Justice Breyer and joined by Justices Ginsburg, Sotomayor and Kagan, the liberal Justices applied the standard set forth in earlier abortion-related cases, particularly Planned Parenthood of Southeastern Pa. v. Casey, and Whole Woman’s Health, and held that the Louisiana law had the “purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an ‘undue burden on the right’” and are, therefore “constitutionally invalid.”
But that opinion on the merits only attracted four Justices. The fifth, the one who by concurring with the result, not the merits, made up a controlling majority, was the Chief Justice. Chief Justice Roberts stated outright that he had been a dissenter in Whole Women’s Health, and disagreed with the liberals on the merits in June Medical, but for him, it all came down to one thing: stare decisis – reliance on precedent. Acting in an institutional manner that both his supporters and critics acknowledge, the Chief Justice flatly stated: that stare decisis instructs us to treat like cases alike, and June Medical was controlled by the previous Texas case. The Chief thus became a minority of one, enraging the president and his supporters and suggesting that, contrary to administration preference, the regime established in Roe v. Wade, may be amended, but as long as John Roberts is the Chief Justice, it is very unlikely to be overturned.
The October 2019 term was certainly eventful not just for the import of several of its most important holdings but serving as a keen reminder that there is a decided difference between jurisprudential conservatism and the political version of conservatism espoused by the Trump administration. Of course, conservative justices often will agree with the preferences of those who appointed them but, in the end, as has been the case with every president in memory, an independent judiciary often will play a trump card.
Stuart M. Gerson is a partner in the Washington and New York offices of the law firm of Epstein Becker & Green, P.C. He is a former federal prosecutor, Assistant Attorney General for the Justice Department’s Civil Division, and Acting Attorney General of the United States. He is also a founding member of Checks & Balances, a right-of-center public interest group, and he is a lead counsel in the Texas litigation, County of El Paso v. Trump, challenging the President’s border wall funding.
Suggested citation: Stuart Gerson, Understanding John Roberts: A Conservative Institutionalist Concerned with Durability of the Law and Respect for the Court, JURIST -Professional Commentary, July 31, 2020, https://www.jurist.org/commentary/2020/07/stuart-gerson-understanding-john-roberts/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org.