Justice Roberts plays the long game
To state that Chief Justice John Roberts has disappointed conservatives may be an understatement. He provided key votes in decisions rejecting the White House efforts to end Deferred Action for Childhood Arrivals and uphold a Louisiana abortion regulation. These votes, Curt Levey lamented in the Washington Post, “mark the death knell for conservative hopes” that the appointment of Brett Kavanaugh to the Supreme Court “would finally produce a reliably conservative court.” Levey criticized Roberts for being “guided by political strategy as much as legal principles.” His arguments against the chief justice compel at least these following two responses.
First, aside from these immigration and abortion decisions, the Supreme Court has produced decisions which reliably accord with those goals of conservatives. Consider the decision in the Seila Law case, released the same day as the Louisiana abortion ruling. Roberts wrote for the majority in striking down the configuration of the Consumer Financial Protection Bureau, the brainchild of Elizabeth Warren that was enacted as law under President Obama. Congress created the institution to be led by a single director who could be removed by the executive branch only for cause, that is, if he or she engaged in some kind of malfeasance or negligence.
This kind of protection for agency heads has been imposed by Congress and accepted by the Supreme Court. However, it has never been popular with the advocates of limited government, who view complete executive branch control as a means to curb the growth of these federal agencies and the bureaucracy in Washington. For the Seila Law case, a majority of the justices embraced the view that the Constitution prohibits Congress from conditioning the removal power of the president. While the law that created the Consumer Financial Protection Bureau did not eliminate the ability of the president to remove its director or even influence its policy priorities, the Seila Law case takes an important step toward the judicial recognition of this unqualified removal power available to the president.
Second, even assuming Roberts is guided by political considerations, that approach should not necessarily be viewed as problematic. Though many commentators and justices rail against the notion, the Supreme Court is a political actor within the American scheme of government. As Alexander Hamilton put it, the Supreme Court is possessed of neither “the purse nor the sword.” Dependent upon Congress for funding and lacking the means to enforce its own decisions, the Supreme Court must rely on the strength of its decisions, in writing for all to see, and the way it navigates the many controversial issues of public policy which come its way for its legitimacy.
It follows that, to the extent Roberts recognizes cases in which there is a risk that the Supreme Court might stray from its constitutional lane, such awareness should be seen as a benefit to the institution. Just because the majority of justices is inclined to decide a particular issue in one particular way does not, in some cases, necessarily mean it should. Sudden shifts in constitutional rules undermine the consistency and predictability that we associate with the rule of law in the United States. Adhering to precedent, as Roberts wrote in the decision striking down the Louisiana abortion law, is an important way for the Supreme Court to counter public claims that its decisions in major cases are arbitrary or that they are purely partisan.
A closer look at those recent decisions of Roberts that have disappointed conservatives reveals that none is likely to be the last word on the subject. In the immigration case, the Supreme Court did not say that the president could not eliminate the program for young immigrants, just that he had to follow the proper steps to do so. In the abortion case, the Supreme Court did not say that states could not pass laws regulating the right of women to choose, just that they could not do it in the way Louisiana had wanted.
So it is worth remembering, as Alexis Toqueville famously remarked, that “there is hardly any political question in the United States that sooner or later does not turn into a judicial question.” Given that the justices of the Supreme Court serve for life, Roberts can certainly afford to play the long game as chief justice. Moreover, there is nothing necessarily wrong with his efforts to ensure that the government institution he leads can as well.
Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”