Unequal Justice: The Unexpected Resolve of Chief Justice John Roberts

In afterglow of the Supreme Court’s landmark rulings on LGBTQ workplace rights (Bostock v. Clayton County) and the Deferred Action for Childhood Arrivals (DACA) immigration program (DHS v. Regents of the University of California), the time has come to reappraise the career of Chief Justice John Roberts and the institution he leads.

In both cases, Roberts wrote that the administration erred not by violating anyone’s substantive rights, but because it had failed to comply with rules requiring proper advance notice and a clear explanation of proposed federal policy changes.

On a court that is always a work in progress, Roberts has found the resolve—at long last—to stand up to the lawlessness of Donald Trump.

To get a sense of just how far Roberts and the court have traveled on the road to redemption—and also how much further they still need to go to—a little history is instructive.

At his 2005 Senate confirmation hearing as the seventeenth Supreme Court Chief Justice, Roberts assured the nation that he had “no [political] agenda.” Likening judges to baseball umpires, he said, “It’s my job to call balls and strikes and not to pitch or bat.”

The testimony sounded warm and comforting, as if culled from the pages of a high school civics text, or lifted from the script of a sappy made-for-TV movie. Few seasoned court watchers, however, took the clichés seriously, and for good reason.

By the time he was tapped for the high court by President George W. Bush, Roberts had established himself as a dedicated Republican operative, having worked as an associate counsel to President Ronald Reagan from 1982 to 1986, and as a deputy solicitor general under President George H.W. Bush from 1989 to 1993. While in private law practice in 2000, he reportedly helped as a behind-the-scenes adviser in the litigation that culminated in the judicial coup d’état known as Bush v. Gore, which installed as President the man who later nominated him to the position of Chief Justice. 

It was widely believed that once confirmed, Roberts would move the Supreme Court to the right in the tradition of his predecessor, William Rehnquist, who had died on September 3, 2005.  On the bench, Roberts proceeded to confirm those expectations, establishing a five-member conservative alliance with justices Antonin Scalia, Clarence Thomas, Samuel Alito, and, in some high-profile cases, Anthony Kennedy.

In 2008, Roberts joined Scalia’s 5-4 majority opinion in District of Columbia v. Heller, which held for the first time that the Second Amendment protected an individual right to own and bear arms. In 2010, he joined Kennedy’s 5-4 majority ruling in Citizens United v. FEC, which transformed federal election law and opened the floodgate to the proliferation of super PACs. Worst of all, in 2013, Roberts wrote the 5-4 majority decision in Shelby County v. Holder, which gutted a key section of the Voting Rights Act.

Even after Roberts aligned with the court’s liberals in 2012 to write the 5-4 majority opinion (National Federation of Independent Business v. Sebelius) that upheld the individual mandate of the Affordable Care Act, he rarely assumed the role of the tribunal’s swing justice in the fashion of Kennedy. Instead, for the most part, he continued to cast conservative votes on vital issues ranging from abortion to “religious liberty,” gay marriage, unions, affirmative action, and political gerrymandering.

Yet while all this should dispel any suggestions that Roberts is a closeted liberal, he appears to have been moved by an unhinged chief executive to defend the rule of law and publicly reclaim the principles of judicial independence.

In November 2018, an open feud broke out between the President and Roberts after Trump called a federal jurist an “Obama-appointed judge” for overturning Trump’s new restrictions on political asylum. In response, Roberts issued a biting statement declaring: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”

Never one to shy away from verbal combat, Trump tweeted a snarky rejoinder: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”

On June 27, 2019, Roberts again teamed with the court’s liberals, authoring a 5-4 majority opinion (Department of Commerce v. New York) that blocked a controversial, and arguably racist, citizenship question from being added to the basic form used to conduct the U.S. Census. The decision derailed the Trump Administration’s plans to dilute the voting power of predominantly Democratic states with large Latinx populations by discouraging Hispanic residents from responding to the 2020 Census for fear that they or their family members might be deported.

Only time will tell if the independence Roberts and Gorsuch have recently demonstrated will last.

Like his opinion in the DACA case, Roberts’s Census ruling was largely procedural. In both cases, Roberts wrote that the administration erred not by violating anyone’s substantive rights, but because it had failed to comply with rules requiring proper advance notice and a clear explanation of proposed federal policy changes. In both cases, Roberts joined liberal justices in finding the administration’s haste to score political victories to be “arbitrary and capricious.”

The LGBTQ ruling, by contrast, was substantive, holding that under Title VII of the Civil Rights Act of 1964, workers at companies with fifteen or more employees are protected against discrimination on the basis of sexual orientation. Roberts joined court liberals and conservative Justice Neil Gorsuch, who wrote the majority opinion, to form a 6-3 majority. And, in another rebuke of Trump, Roberts exercised his prerogative as Chief Justice to assign the task of drafting the majority opinion to Gorsuch, Trump’s first nominee to the court.  

Both the DACA and LGBTQ decisions have left Trump livid.

“The recent Supreme Court decisions . . . ” he tweeted on June 18, “tell you only one thing, we need NEW JUSTICES of the Supreme Court. If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and … Religious Liberty, among many other things, are OVER and GONE!” He promised to release a new list of conservative Supreme Court nominees.

Only time will tell if the independence Roberts and Gorsuch have recently demonstrated will last. The court has yet to release opinions in pending cases on abortion, Congressional oversight of the President, and presidential immunity from state criminal investigations. The court, in other words, has several opportunities to swing back hard to the right.

In the meantime, however, the President’s fulminations have been reduced to little more than the ravings of a weak and corrupt man completely unfit for the office he holds.