The two most influential liberal Justices of the U.S. Supreme Court—Chief Justice Earl Warren and Justice William Brennan—were Republicans appointed by President Dwight D. Eisenhower, who reportedly called them his two worst mistakes. The story of Ike’s statement may be apocryphal, but the phenomenon of Republican appointees disappointing their erstwhile sponsors is real. Nixon appointee Harry Blackmun, Ford’s John Paul Stevens, Reagan’s Sandra Day O’Connor and Anthony Kennedy, and George H.W. Bush’s David Souter all proved less reliably conservative than advertised.
Then the phenomenon apparently stopped. Shortly after his 1991 confirmation, Justice Clarence Thomas famously quipped “I ain’t evolving.” He wasn’t and he hasn’t. With one exception, neither have any of the Justices appointed by Republican Presidents in the years since. Why not?
In a 2007 article in the Harvard Law & Policy Review, I hypothesized that as Supreme Court decisions became more politically salient to their constituents, Republican Presidents got better at screening out potential evolvers by nominating people they knew to be reliable conservatives because the nominees were familiar to the Republican legal establishment based on service in the executive branch of the federal government. Looking at the twelve Republican appointees from the Nixon administration onward, I observed that the six Justices who had not previously served in the executive branch of the federal government evolved—that is, proved to be liberal or moderate—whereas the six who had served in the federal executive did not evolve. Noting that it was far too early in their tenure to draw any conclusions about Chief Justice John Roberts and Justice Samuel Alito, I nonetheless predicted that based on their prior experience, they would both remain reliable conservatives.
I was right about Alito but wrong about Roberts.
To be sure, no one would mistake John Roberts for a liberal. He joined the leading decisions finding gun rights in the Constitution, dissented from the Court’s decision establishing marriage equality, wrote the Court’s opinion rejecting judicial review of political gerrymandering, and has, more broadly, steered the Court in roughly the same direction as his conservative predecessor, Chief Justice William Rehnquist (for whom Roberts clerked as a young lawyer).
Yet lately Chief Justice Roberts has been as likely to join his Democratic-appointed colleagues in high-profile cases as he is to join his fellow Republicans. In the summer of 2020 and thereafter, Roberts joined the Democratic appointees in rejecting challenges to public health regulations, even bringing along Justice Brett Kavanaugh to create a 5-4 majority for upholding the Biden administration’s vaccine mandate for workers in federally funded health-care facilities last month. Despite previously dissenting from the Court’s abortion rights rulings, Roberts cast the fifth and decisive vote to strike down a Louisiana abortion restriction in a 2020 case, concluding that the challenged law was indistinguishable from a Texas law the Court had only recently invalidated, even though Roberts had dissented in the Texas case.
Does It Matter?
While Roberts has sometimes played a pivotal role, since Justice Ruth Bader Ginsburg’s death and her replacement by the very conservative Justice Amy Coney Barrett, the Chief’s evolution has had little impact on the outcomes of cases, as there are now five Justices to his right. Thus, although Roberts joined his Democratic colleagues in voting to allow lawsuits against the Texas attorney general to block the Lone Star State’s notorious SB8—which replaces public enforcement of an abortion ban with large private bounties—they were outvoted by the other Republican appointees, who permitted only a very narrow challenge and then sent the case back to the conservative U.S. Court of Appeals for the Fifth Circuit despite the Chief’s statement that the district court should have been permitted to resolve the case for the abortion providers quickly. Instead, the appeals court has slow-walked the litigation while abortion after six weeks remains essentially illegal in Texas.
Perhaps most dramatically, last week the Chief Justice joined the Democratic appointees in dissenting from the majority’s decision to block a lower court ruling that had invalidated Alabama’s racially biased electoral map. Roberts, the author of the notorious 2013 ruling in Shelby County v. Holder—which invalidated a key provision of the Voting Rights Act—thought that this time the Court had gone too far.
Does the surprising evolution of Chief Justice Roberts matter? Perhaps not. The five Justices to his right seem intent on rolling back abortion rights, promoting gun rights, weakening the separation of church and state, and invalidating all race-based affirmative action. Roberts might even join them in some of these projects.
Still, if Roberts is becoming a moderate or a liberal, that could make a difference. It is much harder to find two unexpected votes for a liberal outcome—as one must on a 6-3 Court—than to find just one. Kavanaugh’s vote in the vaccine mandate case—like Justice Neil Gorsuch’s 2020 majority opinion finding that a 1964 civil rights law forbids discrimination based on sexual orientation or gender identity (which Roberts but not the other Republican appointees joined)—illustrates that shifting the Chief from a presumptively conservative vote to a potential moderate or liberal vote changes the dynamic on the Court.
The Roots of the Chief’s Evolution
Whatever the ultimate impact of the Chief’s evolution, we might wonder what is causing it.
To begin, we might identify a backlash effect. Even as a judge on the Eighth Circuit, Harry Blackmun was substantially more liberal than President Nixon realized, but it was not until after he wrote the majority opinion in Roe v. Wade that Blackmun—who was vilified by the right for it—became reliably liberal. Being attacked by the right played a role in what Linda Greenhouse’s elegant biography aptly called “Harry Blackmun’s Supreme Court Journey.”
(So far as I am aware) Roberts has not had to endure the picketing, hate mail, death threats, or assassination attempt that were aimed at Blackmun, but for nearly a decade he has been cursed by Republicans as an apostate for joining with his Democratic colleagues in 2012 in upholding the Affordable Care Act. That experience may well have had a moderating effect on him, especially given his commitment to a view of the Court as above politics. Roberts may have been genuinely taken aback by the suggestion that as the appointee of a Republican president, he owed the party his vote in opposition to the signature legislative achievement of a Democratic president.
As a nominee appearing before the Senate, John Roberts likened the judicial role to that of an umpire calling balls and strikes. In one sense, that is simply the kind of formalistic cant that all Supreme Court nominees feel compelled to recite. Even though everyone knows that presidents select nominees based on their values and views, to win confirmation, nominees must swear fealty to a disembodied law, as though its application in contested cases did not call upon value judgments.
For Roberts, however, the commitment to at least the appearance of an impartial judiciary is not mere confirmation fibbing, but foundational to his self-conception. Writing in The Atlantic in 2019 to review Joan Biskupic’s insightful biography of Roberts, Michael O’Donnell described a war within Roberts between, on one hand, his love for the Supreme Court and the federal judiciary as institutions, and, on the other hand, the conservative commitments Roberts formed during his youth and strengthened during the Reagan administration. The backlash against the Obamacare decision led Roberts to realize that he could not always be both an institutionalist and a conservative ideologue. Roberts chose institutionalism.
We might also understand the Roberts journey as a sign of the times. Blackmun used to complain that pundits who described his evolution were wrong. He did not move left, he said; the Court moved right, and thus he only appeared to move by contrast. As Greenhouse shows, that is not entirely accurate. Neither would such an account be entirely accurate with respect to Roberts. But it would contain more than a kernel of truth.
In the 2020 Louisiana abortion case, Roberts seemed genuinely puzzled that his fellow conservatives could claim to be applying rather than overruling the recent ruling involving an identical Texas statute. In the SB8 litigation, he took much the same view: so long as the abortion right remains on the books, states should not be rewarded for circumventing it. And that was his position again last week in the Alabama Voting Rights Act case: maybe the Court should re-examine its precedents, but until it does, a lower court shouldn’t be reversed for applying them faithfully.
In these and other cases, Roberts has hardly been staking out a strongly liberal or progressive position. Rather, he is simply insisting on what have hitherto been principles that liberals, moderates, and conservatives all agreed upon: apply the law on the books while it remains there. Or, more boldly, don’t lie about the law.
Seen in this light, the evolution of John Roberts does look a fair bit like a man standing still while the landscape moves past him (and to the right). It also makes Roberts look a fair bit like another prominent Republican, Mike Pence. Despite sterling conservative credentials and four years spent demeaning himself as Donald Trump’s Vice President, when push came to shove there was a line Pence would not cross—and it was much the same line that Roberts has been unwilling to cross. Neither man would brazenly lie about the law to further partisan ends.
It takes nothing away from the personal courage and integrity of John Roberts or Mike Pence to observe that the remarkable fact is not that they have stood up for previously uncontroversial principles but that so many of their fellow Republicans—including elite conservative lawyers who surely know better—have not.
With apologies for the ableist metaphor, on a Court of the blind, the one-eyed man is Chief.
