John Roberts shows the nation he can steer the Supreme Court ship

John Roberts shows the nation he can steer the Supreme Court ship
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Supreme Court Chief Justice John Roberts has shown that he knows how to steer the ship over the years. He has used his vote and voice to protect the institutional integrity of the Supreme Court, treading carefully when determining whether it should hear appeals on controversial issues and favoring resolutions in those cases that chart the narrowest path forward.

Yet, outside of the hot button cases, Roberts tolerates the prospect of potentially broad reaching changes in many areas of constitutional law that could put the Supreme Court at the center of political disputes that touch the lives of most Americans. This dichotomy is illustrated by two decisions from this last term, one in which Roberts wrote for the majority and one in which he joined a dissent by Associate Justice Neil Gorsuch.

In Commerce Department versus New York, the justices considered a challenge to the Trump administration decision to add a citizenship question to the census. Writing for the majority, Roberts agreed that credible evidence suggested the Commerce Department had crossed a judicially enforceable line by implementing a policy change for reasons aside from public explanations for the change. “Accepting contrived reasons,” he explained, “would defeat the purpose of the enterprise.”


Notwithstanding this key finding, Roberts was certainly careful to explain why the courts generally owe the executive branch deference when it comes to policy decisions. For instance, when there is a choice to be made between reasonable policy alternatives, that choice is for the executive branch to make, as judges should not substitute their own opinions for that of an agency with responsibility for the matter.

With this principle in mind, the Supreme Court remanded the heated census case for further consideration by the lower district court. To frame the disposition in terms of the favorite analogy of Roberts, a majority of the Supreme Court found the census pitch by Commerce Secretary Wilbur Ross to be sufficiently close to the edge of the strike zone to warrant additional judicial inquiry into whether it was a strike or a ball.

Compare this result to Herman Gundy versus United States, which was decided a few days earlier, in which Roberts joined Gorsuch in dissent. That case concerned the meaning of a technical criminal statute and, more importantly, the extent of the power of Congress to delegate certain regulatory functions to the attorney general. Adhering to precedent, a plurality of the Supreme Court joined the judgment by Associate Justice Samuel Alito, which concluded that Congress had indeed articulated an intelligible principle standard for the discretion of the attorney general.

The intelligible principle standard is a low constitutional bar for a good reason. A more discerning test would invite challenges to any legislative scheme in which Congress had tasked the executive with implementation responsibility. This is why, as Associate Justice Elena Kagan explained in the lead opinion, the Supreme Court has long embraced a generous strike zone when plaintiffs allege improper lawmaking delegations by Congress. To shrink that strike zone, as Gorsuch and the dissenters urged, effectively would expand the reach of the courts. Judges would call more balls and fewer strikes, which would then translate to more instances of the courts standing between Congress and its desired policy goals with legislation.

Here is the puzzle that the way Roberts voted represents in these cases. On the one hand, as in the decision in Commerce Department, Roberts recognizes that the courts need to allow a sufficiently wide strike zone so as not to trample on the legitimate prerogatives of political actors. On the other hand, as in the decision in Gundy, he supports narrowing the strike zone in a way that would invite challenges to federal legislation that will offer opportunities for judges to second guess legislative prerogatives.

While decisions like Commerce Department will protect the institutional integrity of the judiciary by keeping the Supreme Court in its lane, the approach endorsed by the dissenters in Gundy would put the Supreme Court in the middle of policy debates over the environment, health care, criminal justice, and many other issues. Should that approach command a majority, constitutional litigation may well come to be regarded as politics by other means, with the Supreme Court as simply another political actor.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”