This week Chief Justice John Roberts really let fly with definitive, table-pounding rulings outlawing affirmative action in college admissions as a violation of our laws and shooting down the Biden administration’s college-loan-forgiveness scheme. He did this even as some conservative court-watchers worried that, seeing the dive in approval ratings for the Court after Dobbs, Roberts would put on his “institutional hat” and try to move as quickly as possible to the political center of gravity.
In a way, maybe he did. Affirmative action is not popular the way Roe was.
But overall I have questions that I’d like to throw out to other NR contributors and to the comments.
Has Roberts changed? Sometimes justices do become more conservative or more liberal over their tenure on the Court.
Was it just that the questions changed? Or was John Roberts more conservative just because the subject matter changed to questions on which he’s more comfortable letting out his inner originalist?
Is it that Biden is much more unpopular than Obama? Obama famously threatened the popularity of the Court ahead of the Obamacare decision — Roberts’s infamous rewrite job. But as a political figure, Obama was historic and still credibly very popular. He had a much higher approval rating than Joe Biden does now and so presented much more of a live political threat.
Or is it something else? Perhaps the leak of Dobbs is pushing Roberts into DGAF territory. Or maybe it is, as I suspect, the intellectual collapse of the left side of the court under Sotomayor and Brown Jackson. It’s just harder for Roberts to find common ground with justices who are filling up their opinions with historical myths, factual inaccuracies, and sentences crafted to sound like late-night comic insults rather than legal reasonings.