Chief Justice Roberts has been the center of attention recently, whipsawing both liberals and conservatives with his various opinions. He sided with Justice Gorsuch and the four “liberals” on the bench in ruling that “sex” in Title VII of the Civil Rights Act includes “sexual orientation” and “gender identity,” and he wrote a somewhat baffling concurring opinion in the Louisiana abortion regulation case, which had the effect of his striking down the regulation with the four “liberals,” saying he still disagrees with the freshly minted Supreme Court decision about a similar Texas regulation to which he dissented but is “duty bound” to follow it as precedent, although not the part he really dislikes, which is now no longer binding. Liberals are pleasantly surprised; conservatives fear the sky is falling.
Then, joining with his “conservative” colleagues on the bench, Roberts writes the 5-4 majority opinion in a case emphasizing that religious people and entities cannot be denied publicly available benefits just because they are religious, in that case tax credits for scholarships to private schools, and joins Justice Alito’s opinion, making it a majority opinion, basically extending the “ministerial exemption” to all religious school teachers. He also joins Justice Thomas’s majority opinion sustaining the Trump Administration’s broader conscience exemptions against religious and other employers paying for their employees’ contraception or abortifacient drugs. Conservatives wipe away their tears for the moment; liberals restart their teeth gnashing.
So what is going on with Roberts? No one can plumb the psychology of a public figure from a distance very well, let alone someone as close-mouthed and cerebral as Roberts, but I hazard a few observations:
- His often overarching motivation is to preserve the independence and good reputation of the Court as a non-political institution. Perhaps he feels this is his special responsibility as the Chief Justice.
- As a result, he doesn’t like the Court to be seen as principally liberal or conservative. And he certainly doesn’t want it to be seen as the “Trump” Court.
- The Title VII case allowed him to go in the liberal direction, especially with the cover of Gorsuch writing the opinion, with a big splash publicly but a more limited consequence legally, in that it was an interpretation of a statute that Congress can change if it doesn’t like it (or, more likely, that they will change anyway as soon as the Democrats hold both Houses). The same can be said for his recent votes with the liberals (a) against President Trump’s setting aside of President Obama’s “Dreamer” regulation (Trump loses, but he only has to go through the regulatory motions better the next time around to get what he wants) and (b) against providing Trump absolute immunity from state and congressional subpoenas (Trump loses, but he can still show that they should not be enforced against him for practical reasons).
- Abortion is the hottest potato in the sack. Roberts doesn’t like Roe and its progeny, but he doesn’t want to overrule Roe just 5-4, conservatives vs. liberals. So he’s willing to retrench a little on the legal standard, making it easier for future regulators to restrict abortions, while mouthing the importance of following the Court’s own precedents, even though he doesn’t agree with them.
Now, Roberts may misread the public’s perception (or lack thereof) of the Court, and he also may regard his own ability to alter that perception too highly, even shooting himself in the foot while he’s trying to be nimble politically. One could certainly hope that he would stick a little better to his famous analogy and just call balls and strikes, not try to tweak the public’s perception of the players, especially when the lives of innocent, unborn babies are at stake. But laments that the Chief Justice has gone over to the “dark side” should be tempered.