The writer is a fellow at New York University’s Brennan Center for Justice
When chief justice John Roberts sided with the liberal wing of the US Supreme Court on Monday for the third time in two weeks, some observers argued that it was time for a wholesale re-evaluation of the jurist.
Appointed as a pro-business Republican in 2005, Mr Roberts racked up a reliably conservative record on issues ranging from campaign finance and organised labour to abortion.
Still, some conservative commentators branded the chief justice a traitor for his 2012 decision that saved Democrat Barack Obama’s signature healthcare plan from the dustbin and again when he provided the crucial vote last year to block the Trump administration’s effort to inject a citizenship question into the census. But progressives remained sceptical.
Yet it would be a mistake to view Mr Roberts’ recent votes as charting a new liberal trajectory. His shift defies neat right-left categorisation. He is above all an institutionalist focused on America’s quaking democratic foundations. The top US judge is determined to wring greater institutional integrity and precise decision-making from Congress, the president and even his fellow judges.
For the progressive community it is tempting to welcome the victories with unalloyed joy as a sign that Mr Roberts has replaced Anthony Kennedy as the court’s swing vote and blessed a left-leaning settlement on some of America’s most hotly contested issues.
In mid-June the chief justice cast the deciding fifth vote to block Donald Trump’s effort to cancel an Obama-era programme for 700,000 “Dreamers” — young people who came to the US as children and through no fault of their own failed to comply with immigration laws. In 2012, the Obama administration created the Deferred Action for Childhood Arrivals (Daca) programme to protect them from deportation.
The Trump administration decided to pull the plug on it, justifying the move on the fact that part, but not all, of Daca had been held illegal. Mr Roberts rejected the rescission not, as some might have hoped, because it was biased or wrong-headed, but because the officials did not fully think through and plan for all the issues involved.
“When so much is at stake . . . the government should turn square corners in dealing with the people,” Mr Roberts wrote.
That sentence is the tell. He is not a sudden liberal. He is worried when the executive branch makes sudden moves without thinking them through. Indeed, his opinion helpfully provided a three-paragraph road map for how to undo the programme in ways that met his approval, noting that the government would have “considerable flexibility”.
Mr Roberts’ vote that same week joining a larger majority extending protections against job discrimination to LGBT+ people was similarly institution-oriented. Only, in this case, Congress was the object under scrutiny. The majority opinion that Mr Roberts joined sent a clear signal: write your laws very carefully because the exact words used will matter for decades.
Monday’s ruling to strike down a Louisiana law imposing a requirement that doctors performing abortions have admitting privileges at nearby hospitals proves the point. From afar, Mr Roberts’ decision to join the four pro-choice justices was an astonishing reprieve for abortion-rights proponents. Only four years ago, he had voted that a virtually identical law in Texas was constitutional. But crucially he was in the minority.
This time, presented with the same issue and with two new conservative justices who could make a majority to uphold the law, the chief justice kept his eyes firmly fixed on the role of the high court.
Public perception of the integrity of the judiciary, wavering in recent years, was at stake in such a high-profile case. A flip-flop could make the court seem erratic or worse. So Mr Roberts fell back on a bedrock judicial principle: stare decisis, “to stand by things decided”.
Conservatives and liberals want to focus on the specific social issues in the three cases, and the people who are affected by them. Mr Roberts does not. The grand ebb and flow of America’s political settlements and the integrity of its governing bodies are central to his thinking. He is homing in on holding the nation’s institutions responsible for their decisions. To drive home the point, Mr Roberts returned to the conservative fold on Tuesday in a religious liberty case. So don’t call him a liberal.
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