Jonathan Adler: The Real John Roberts

Note: this piece was originally published in The New York Times, and was written by Checks & Balances member Jonathan Adler. 

What is up with Chief Justice John Roberts? Has he been cowed by political pressure to move left? Is there a method to his apparent maddening pattern of trading off conservative opinions with liberal ones?

The chief justice has sided with the Supreme Court’s liberal justices on some of the biggest cases of the term, like decisions to invalidate the Trump administration’s effort to rescind the DACA program and Louisiana’s abortion-provider regulations. In others, he has stuck with the conservatives.

Chief Justice Roberts’s voting pattern certainly fails to conform to a predictable ideological pattern. But there is a pattern nonetheless. He is a conservative justice, but more than anything else, he is a judicial minimalist who seeks to avoid sweeping decisions with disruptive effects.

This has been the hallmark of his jurisprudence since he joined the court in 2005. And while there are significant exceptions (most notably, Shelby County v. Holder, which invalidated a major component of the Voting Rights Act), Chief Justice Roberts’s anti-disruption jurisprudence has become more pronounced the longer he has been on the court.

As a judicial minimalist, Chief Justice Roberts seeks to resolve cases narrowly, hewing closely to precedent and preserving status quo expectations. If a litigant seeks an outcome that will transform the law or produce significant practical effects, his vote will be harder to get. At the same time, he takes a strict view of “justiciability” — that is, whether a case should be in federal court at all. He is also reluctant to bless new avenues of litigation for those who seek to use the courts to drive public policy.

Continue reading at The New York Times.