The Supreme Court term that begins on the first Monday of October—October 7—will mark John Roberts’s 20th term as chief justice. The occasion calls for some reflections on the so-called “Roberts Court.” As it happens, I’ve agreed to give a talk on that topic in a month, so I figured that I would begin gathering my thoughts. Here’s a preliminary sketch:
1. Roberts became chief justice on September 29, 2005, so this Sunday will be his 19th anniversary. Of the 17 men who have been chief justice, Roberts now ranks fourth in tenure. He passed William Rehnquist (for whom he clerked when Rehnquist was an associate justice) around 20 days ago, but still trails John Marshall (34+ years), Roger Taney (28+ years), and Melville Fuller (21+ years). He would surpass Marshall (if my quick calculation is correct) on March 1, 2039, when Roberts would be 84 years old.
2. When Roberts first became chief justice, he was 50 years old and was the first new justice on the Court in more than 11 years. He was considerably younger than nearly all of the other justices: seven of them ranged in age from 66 to 85, and the average age of his colleagues (including 57-year-old Clarence Thomas) was 70.
Nineteen years later, Roberts at 69 is now the fourth oldest member of a much younger Court. The average age of his colleagues is around 63, and four of his colleagues are younger than 60.
3. I am not particularly fond of the convention of referring to the Court by the name of the chief justice. That convention seems most sound when the Court broadly reflects the judicial approach of the chief justice, as with the “Marshall Court” and the “Warren Court.” I suppose that it has some value as well when the ideological composition of the Court is fairly stable during a chief justice’s tenure, even though that composition is not well aligned with the chief justice: consider, for example, the “Burger Court” and the “Rehnquist Court.”
4. I don’t think that it makes much sense to speak of a unitary “Roberts Court.” I would instead identify three phases.
A. The first phase ran from 2005 until Anthony Kennedy’s retirement in 2018. After Samuel Alito replaced Sandra Day O’Connor in January 2006, Kennedy was the median justice, or swing vote, until his retirement. The three justices appointed during these years did not alter the ideological composition of the Court, as each was broadly similar to the justice being replaced (Sotomayor for Souter in 2009, Kagan for Stevens in 2010, Gorsuch for Scalia in 2017).
From a conservative legal perspective, Roberts’s challenge during these years was to keep Kennedy onside. That might have been an impossible challenge for anyone to meet. Notable failures include Kennedy’s majority opinions in Boumediene v. Bush (2008) (aliens detained on foreign soil as enemy combatants have a constitutional right to habeas corpus), United States v. Windsor (2013) (federal Defense of Marriage Act is unconstitutional), and Obergefell v. Hodges (2015) (laws that define marriage as a male-female union are unconstitutional), each of which elicited a vigorous dissent from Roberts.
With Kennedy onboard, this first phase also included many significant conservative victories. To name a few:
- Gonzales v. Carhart (2007): Federal partial-birth abortion law does not violate the Fourteenth Amendment
- District of Columbia v. Heller (2008): Second Amendment protects an individual’s right to keep and bear arms
- Citizens United v. FEC (2010): First Amendment prohibits campaign-finance provisions that bar independent expenditures by corporations and unions
- Shelby County v. Holder (2013): Voting Rights Act formula for determining which jurisdictions are subject to preclearance requirement for changes in voting procedures is unconstitutional
- Burwell v. Hobby Lobby (2014): HHS contraceptive mandate violates Religious Freedom Restoration Act rights of privately held corporation
- Janus v. AFSCME (2018): First Amendment prohibits requiring public employees to subsidize a union
But what stands out most for many conservatives during this phase is the ruling in the Obamacare individual-mandate case, NFIB v. Sebelius (2012), in which Roberts joined with the four liberal justices to hold that the law’s mandate to individuals to buy health insurance was a constitutional exercise of Congress’s taxing power.
B. The second phase of the Roberts Court began when Brett Kavanaugh replaced Kennedy in the fall of 2018 and was cut short two years later when Ruth Bader Ginsburg died.
One might have thought that Kavanaugh’s replacement of Kennedy would enable Roberts to forge a new conservative majority under his direction. But Roberts instead seemed eager to establish himself as the new median justice. Most notably, he dubiously invoked stare decisis (the legal doctrine of respect for precedent) as his reason for providing the decisive fifth vote in June Medical Services v. Russo (2020) against Louisiana’s admitting-privileges law for doctors performing abortions, and in so doing he reinforced hopes on the Left that bullying him pays big dividends. Similarly, in a striking departure from his usual approach to statutory interpretation (see last half of this post), the Chief joined Justice Gorsuch’s majority opinion in Bostock v. Clayton County (2020), which held that discrimination on the basis of sexual orientation or transgender status constitutes discrimination “because of … sex” in violation of Title VII.
C. We are now in the third phase of the Roberts Court. This phase began when Amy Coney Barrett replaced Ruth Bader Ginsburg in the fall of 2020. Roberts suddenly appeared to have five justices to his right, so he no longer had the unilateral authority to position himself as the median justice.
If you had asked me back in 2005 what the greatest possible triumph of the Roberts Court might be, I would have said the overruling of Roe v. Wade. As I argued in this Wall Street Journal op-ed on the eve of oral argument in Dobbs v. Jackson Women’s Health Organization (2022), Roberts’s jurisprudential principles dictated that he should lead the Court to use that case to overrule Roe. But Roberts declined to join Justice Alito’s excellent majority opinion in Dobbs and instead opined only that Mississippi’s 15-week law provided a woman an ample opportunity to obtain an abortion.
Over the past two terms, however, Roberts has staked a strong claim to be the leader of the conservative majority on the Court. In Students For Fair Admissions v. Harvard (2023), he wrote the majority opinion for six justices holding that the use of racial preferences in university admissions programs violates the Equal Protection Clause. And this past term he led the way in Trump v. United States (former president has broad immunity from criminal prosecution) and Loper Bright Enterprises v. Raimondo (rejecting Chevron deference).
Some see in this third phase a 3-3-3 division on the Court: three liberal justices on one side, Thomas, Alito, and Gorsuch on the other, and the Chief, Kavanaugh, and Barrett in the middle. That division was more evident two terms ago than it was last term. We shall see whether it will manifest itself more durably.
5. How long will this third phase of the Roberts Court last? That depends primarily, I think, on when and how the membership of the Court will change. Will conservatives perpetuate their majority by having a Republican president fill Thomas’s and Alito’s seats when they decide to retire? Might a Democratic president’s replacement of a conservative justice once again make Roberts the median justice, and how would that affect his decisionmaking?