If you were off the site by Monday evening for the Fourth of July, I recommend catching up on Jeff’s in-depth look at Chief Justice John Roberts, a man who vexes conservatives and progressives alike.
There are a number of angles from which to explain most any Supreme Court justice; I have criticized Roberts in the past for his lack of judicial courage, and his relatively mild commitment to originalism makes him naturally seem less principled than, say, Clarence Thomas or Neil Gorsuch. To my mind, however, the best way to understand Roberts and his jurisprudence is that he thinks in terms not only of institutions and their proper spheres of power within our federal system, but also in terms of the proper functioning of those institutions. He will therefore protect institutions whose proper and traditional powers seem threatened, but he will rebuke institutions that try to exercise power without due deliberation and procedure. And he will stand up for the powers of the courts not as all-deciding bodies but as a sort of hall monitor that ensures that everyone else is playing by the rules. Roberts is not pro-democracy or anti-democracy; he thinks democracy has rules, so it really matters whether or not they’ve been followed. This is how he differs from Anthony Kennedy, another “swing justice” but one who took a much more aggressive view of when courts can simply take decisions out of the hands of the elected branches. Only when Roberts thinks there are no rules to play by can he be persuaded to get the courts out of the way entirely.
When you apply this framework, much of Roberts’s work makes more sense. Democracy, administration, and judging are all supposed to be deliberative, and Roberts will strike down anything that doesn’t result from the proper process. So:
- A statewide referendum decides a major social issue, as in Obergefell? The state wins.
- A state law violates a right explicitly placed into the Constitution by the amendment process, as in Bruen? The state loses.
- Congress passes a big, complex, hotly debated statute, as in NFIB? Congress wins.
- The administrative agencies rewrite the rules in a way that seems, to Roberts, consistent with what Congress did after all that deliberation, as in King v. Burwell? The agencies win.
- The agencies and the president try to do stuff that failed to pass Congress and was never deliberated or mentioned in the statute, as in Biden v. Nebraska and any number of the “major questions” cases? The agencies and the president lose.
- The statute itself could be read to do something unanticipated and unmentioned, simply by a logical thread from its language, as in Bostock? Congress wins.
- Congress waved something through without checking to see if the facts had changed, as in Shelby County? Congress loses.
- The president runs an order through a bunch of processes, as in Trump v. Hawaii? The president wins.
- The executive branch doesn’t do all its homework, as in Department of Commerce v. New York? It loses. A body of law has developed that the Court can use to supervise state laws, as in Dobbs? The body of law stays, albeit with continued modifications.
- Universities tell the Court “just trust us” on racial preferences, without a meaningful standard of judicial review, as in SFFA v. Harvard? The universities lose.
- States want to do partisan gerrymandering, and there are no meaningful rules to judge it by, as in Rucho? The states win, judicial review is not applied.
- A state legislature tries to evade state-court judicial review, and state courts want to evade federal-court review, as in Moore v. Harper? The legislature has to abide by the usual procedures, but the state courts are then under general federal-court review.
I could go on, but you get the point. When Roberts thinks there are rules to apply, he’ll apply them; when he thinks there are processes to be followed, he will force others to do so. That alone won’t always predict all of his decisions, but it will give you good odds of doing so.