Roberts vs. Trump: Barely Disguised Contempt (Part 2)

Many readers are understandably upset with the Roberts Court's dismantling of the Voting Rights Act and other decisions viewed as politically and socially regressive. But there is another side of Roberts and his Court--perhaps just a slice--that shouldn't be overlooked. Some of the decisions exhibit a different character.

In Part 1, we looked at two majority opinions of Chief Justice John Roberts. One sided with President Trump and one did not. But in both, the Chief Justice's utter disdain for Trump's words and actions could not have been more clear. While upholding the travel ban of Trump's first administration [Trump v. Hawaii (2018)], Roberts contrasted Trump's expressed religious bigotry to the magnanimous and tolerant welcoming of other presidents toward minority religions. And when Roberts more recently wrote to invalidate Trump's tariffs [Learning Resources, Inc. v. Trump (2026)], he made clear how the tariffs seemed the result of fitful recklessness rather than thoughtful consideration. 

There are more than a few other decisions--in which Roberts either wrote for the majority or was part of it--where Trump's major policies or pet preferences were blunted or rejected outright. Sometimes the Roberts majority did so summarily. As in, "give me a break!"

But whether the Roberts-led majority did so summarily or with full deliberation and opinion, recalling a sample of these decisions lends a less monochromatic picture of the Chief Justice and, particularly, his Court's perspective on Trump. Consider these:

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In Moore v. Harper, Chief Justice Roberts wrote for a 6-3 majority--above dissenting Justices Thomas, Alito, and Gorsuch--to reject a pet constitutional theory advanced by Trump and his allies. The so-called "Independent Legislature Doctrine" would have barred any judicial review of any state legislative gerrymandering.

For example, that doctrine would prevent a state supreme court from ruling that the gerrymandering enacted by the state's legislature violated constitutional rights under the state's law. So, in this case, it would have prevented the North Carolina Supreme Court from ruling that the extremely partisan gerrymandering by North Carolina's Republican controlled state legislature violated the state constitution's guarantees of voting rights and equal protection. In short, the state legislature's gerrymandering would be final and the North Carolina Supreme Court could do nothing about it.

Trump and his allies' pet theory, which was advanced to help guarantee additional pro-Trump voting districts, was emphatically rejected by the Roberts majority. The Chief Justice, together with Justices Kavanaugh and Barrett, voted with the three liberal Justices--Sotomayor, Kagan, and Jackson. According to Roberts' opinion, despite the Supreme Court's hands-off approach to partisan gerrymandering by state legislatures, the state supreme courts are free to engage in the matter and prohibit such gerrymandering under their own state law.

The year before, a similar majority--again headed by Roberts, but before Justice Jackson replaced the retiring Stephen Breyer--had weighed in on another election-related matter against Trump and his allies.

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In Ritter v. Migliore, the 6-3 Roberts-led majority refused to invalidate certain mail-in ballots--another pet-target of Trump and his supporters. In this case, via a mere order without opinion, the Roberts majority, against the wishes of Trump allies, granted certiorari (i.e., accepted review) and summarily allowed the counting of timely mail-in ballots whose lone defect was their undated envelopes. Once again, Thomas, Alito, and Gorsuch were in dissent.

Last year, despite what seemed to some to be consistent Trump victories at the Court, Roberts-led majorities did stymie numerous efforts by the President, his administration, and his allies. Let's start with foreign affairs.

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In Department of State v. AIDS Vaccine Advocacy Coalition, in another unsigned order, the Chief Justice, joined by the three liberals plus Justice Barrett, summarily sustained a decision of a lower federal court that had directed the Trump administration to pay nearly $2 billion to a global non-profit health organization. In effect, a 5-4 majority mandated that the Trump administration disburse the funds for work already performed in the international AIDS prevention programs. Thomas, Alito, and Gorsuch were in dissent again, this time joined by Justice Kavanaugh.

Also in 2025, the same Roberts-led 5-4 majority rebuffed Trump's claim to immunity from New York State's criminal proceedings against him.

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In Trump v. New York, the then re-elected but not yet re-inaugurated Trump sought to expand the presidential immunity that the Court had recognized the year before in Trump v. U.S. The Court should go further, Trump argued, and recognize immunity for a president-elect--particularly against state court proceedings here. But again, the Chief Justice, joined by the three liberals plus Justice Barrett, summarily rejected Trump's request and allowed the New York proceedings to continue regarding Trump's multiple state convictions for business fraud. Also again, Thomas, Alito and Gorsuch, joined by Kavanaugh, dissented.

[Footnote: I trust you don't take it seriously when those same dissenting Justices--in cases where they like what the states are doing--insist that the Court should defer to the states and allow the states to do what the states think is best. You don't, do you? They certainly don't advocate deference when they don't like what a state is doing.]

A few years earlier, Roberts had authored an opinion for the Court to reject another Trump argument against state criminal proceedings. This case involved Trump during his presidency.

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In Trump v. Vance, during his first term, the president's lawyers made several arguments for immunizing Trump against state grand jury subpoenas. The chief executive of the national government, they argued, should be shielded from bothersome state proceedings; that allowing state investigations of a president would subject him to harassment by any number of states; that a president is too busy to be distracted by state proceedings; etc. The Roberts majority rejected all the arguments and refused to recognize any broad immunity for a president from state process. A president could challenge a faulty state subpoena just like anyone else. But that's it.

Not surprisingly, Justices Thomas and Alito supported Trump and dissented. Moreover, in a concurring opinion, Justice Kavanaugh, joined by Gorsuch, argued that the Court should require a more demanding level of justification for a state subpoena against a president before it can be approved. The Roberts majority declined to do that.

[Footnote: Same as above. You don't really take seriously the dissenters' "we should defer to the states" argument in other cases, do you?]

And here's a more recent case of Trump versus a state from the end of last year. The decision was another major loss for the administration.

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In Trump v. Illinois, the president--against the will of the Governor of Illinois and Mayor of Chicago--sought to activate the state's national guard. Trump claimed the power to do so. His lawyers argued that Trump has such power based both on the inherent constitutional authority of the office of the presidency, and on federal statutes providing for the protection of federal personnel and property. The Roberts-led majority, in response an emergency application brought by Trump, disagreed.

A five-Justice majority--Roberts, the three liberals, and Barrett--joined in an unsigned order rejecting Trump's claim that he could deploy the Illinois national guard to respond to an "invasion or a rebellion or danger of rebellion" in Chicago. That is, against large gatherings in Chicago protesting against Trump's immigration policies and, specifically, the tactics of ICE (Immigration and Customs Enforcement) agents in the city.

The majority held that the Trump administration failed to show that activating the national guard was necessary. Together with Justice Kavanaugh who wrote a separate opinion, the majority upheld the lower court's order halting Trump's actions.

Not surprisingly, Thomas, Alito, and Gorsuch dissented. They argued, among other things, that the president might have inherent constitutional authority to deploy a state's national guard under circumstances such as in this case. The Court, according to them, should have deferred to the judgment of the president--especially in his emergency application.

[Footnote: Same as above. "Defer-to-the-states" principle apparently applies only when the Justices advocating it like what the states are doing.]

In another immigration-related decision earlier last year, A.A.R.P. v. Trump, the Roberts-led majority put rebuffed Trump's deportation policy that elevated brutal efficiency over the barest of fair treatment.

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As part of Trump's policy of removing non-citizens who he claimed were part of a violent Venezuelan gang, he ordered that any Venezuelan citizen (over 14) could be “apprehended, restrained, secured, and removed" under the 1798 Alien Enemies Act. In fact, they were being sent to a hellish maximum-security prison in El Salvador. After winding its way to the Supreme Court, the emergency application of Venezuelan detainees was granted. 

The Roberts-led 7-2 majority, in an unsigned per curiam opinion, ruled that the non-citizens were entitled, as a matter of constitutional due process, to some meaningful opportunity to challenge their removal. According to that majority, the bare notice that was being provided to the Venezuelans, lacking any useful information and only delivered the day before deportation--a description the Trump administration did not deny--“surely does not pass muster.” 

In an opinion by Alito, he and Thomas dissented. Amidst technical, legal arguments, they evinced--[What can I say?]--as little sympathy for the hardship of the immigrants as the Trump administration. The majority was clearly wrong, Alito argued, because the Court didn't have jurisdiction to rule on this emergency application under the procedural posture of the case. Moreover, he labelled the petition for emergency due process relief an "extraordinary demand." 

Whatever the dissenters doubts about the procedural merits of the case, there is no doubt that here, as in other cases thus far identified, Chief Justice Roberts and his majorities were again displaying, at best, impatience with Trump and his policies.

Two more cases. In both of these, the "defer-to-the-states" dissenters did side with the interests of the respective states. But in these cases, the states involved had policies hostile to abortion--a hostility the dissenters favored. So you would certainly expect the dissenters to vote the way they did.

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In the 2024 case of Oklahoma v. Department of Health and Human Service, the Roberts-led majority supported a pro-abortion position of the Biden administration. The majority rejected the strict hostility towards reproductive choice that has been a hallmark of Trump's presidencies and of his state allies.

In a bare unsigned order, the six-Justice majority--Roberts, the three liberals, Barrett and Kavanaugh--sided with the federal government's decision to deny to Oklahoma several million in funding because that state prohibited abortion referrals and even family-planning counseling. Oklahoma's strict anti-abortion policy contravened the federal Public Health Service Act. In a similarly bare unsigned order, Thomas, Alito, and Gorsuch voted to give Trump-friendly Oklahoma the funds.

As many readers surely know, the Court just issued another abortion-friendly order this month. Once again, the Roberts-led majority sided with reproductive rights and ruled against another Trump-friendly, abortion-hostile state.

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In Danco Laboratories v. Louisiana, the state had sought to stop any shipment of mifepristone into the state. The appeals court below granted Louisiana's request to stop shipments of the abortion-producing medication while litigation was pending. It reasoned that Louisiana was ultimately likely to succeed.

But in an unsigned order of a 7-2 majority, the Supreme Court blocked that ruling. The Chief Justice, the three liberals, Kavanaugh, Barrett, and, this time, with Gorsuch as well, sided with the mifepristone manufacturers and, of course with the women in Louisiana who order it. In ordering the shipments to continue, the majority were apparently not so sure that Louisiana would ultimately prevail.

As one would certainly expect, Justices Thomas and Alito dissented. In his separate opinion, Thomas argued that the 19th century Comstock Act, which prohibits all interstate distribution of contraception and abortion materials, should still be enforced. In his opinion, Alito argued that the interstate mailings of mifepristone effectively undermine the Court's 2022 decision in Dobbs v. Jackson which overruled Roe v. Wade. But the Roberts-led majority seemingly had no interest in expanding the effect of the Trump-instigated Dobbs decision--let alone reviving the Comstock Act.

That's all for now. Did I cherry pick decisions to make my point? Guilty. Did I identify a very limited number of Roberts-led decisions that happened to have a common thread? Yes, guilty.

But the point is that the Roberts Court has not been uniformly supportive of Trump. No, not at all. It might seem that way to some who abhor some of the pro-Trump decisions. To be sure, at times it does seem as though the Court has been issuing one pro-Trump decision after another. Especially after some that might seem shockingly contradictory to established constitutional principles.

But a candid, dispassionate review of the Court's decisions shows that the Court has not been unidirectional when it comes to Trump, his administration, and his policies. And regarding the particular purpose here, Chief Justice Roberts and his majorities have actually handed Trump some very important defeats, and they have increasingly shown an impatience and even utter contempt for this president and his policies.

Roberts vs. Trump: Barely Disguised Contempt

Olivier Douliery/AFP via Getty Images

Linda Greenhouse, the Pulitzer Prize winning former Supreme Court reporter for the New York Times, recently put it this way: the Chief Justice’s “vexation with Mr. Trump verges on acute concern.” [Linda Greenhouse, Roberts Is Losing Patience With Trump, NY Times, Feb. 24, 2026.]

Indeed, the “gratuitous” paragraph Greenhouse excerpted, from Roberts’ majority opinion rejecting Trump’s asserted tariff power, reveals at least “vexation.” Here are several such lines from that paragraph and the preceding one:

[T]he President imposed a 25% duty on most Canadian and Mexican imports and a 10% duty on most Chinese imports. [He also] imposed a duty “on all imports from all trading partners” of at least 10%. Dozens of nations faced higher rates. And these tariffs applied notwithstanding any extant trade agreements.

One month after imposing the 10% drug trafficking tariffs on Chinese goods, he increased the rate to 20%. One month later, he removed a statutory exemption for Chinese goods under $800. Less than a week after imposing the reciprocal tariffs, the President increased the rate on Chinese goods from 34% to 84%. The very next day, he increased the rate further still, to 125%...The President has also shifted sets of goods into and out of the reciprocal tariff framework (exempting from reciprocal tariffs beef, fruits, coffee, tea, spices, and some fertilizers). And he has issued a variety of other adjustments. See, e.g., extending “the suspension of heightened reciprocal tariffs” on Chinese imports.

[Learning Resources, Inc. v. Trump (2026).]

The obvious--whether actually gratuitous--point is that this is capricious conduct of an erratic man.

But the tariffs case was hardly the first time that Chief Justice Roberts has shown “acute concern” about Trump. A notable illustration from back in Trump’s first term was Roberts’ opinion for the Court in the Muslim Ban—I mean “Travel Ban”—case. While his majority opinion upheld Trump’s immigration restrictions at issue in that case, Roberts took pains to point out that his opinion was not an endorsement of “a particular President,” but about “the authority of the Presidency itself.”

Even then, Roberts highlighted the argument that “this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition.” And though he emphasized that the constitutional question in the case was "not whether to denounce the statements,” Roberts’ denunciation was clear.

In a few paragraphs, perhaps as “gratuitous” as the ones in the Tariffs case, Roberts recapped many of Trump’s ugly statements about Muslims. Here’s part of what Roberts included in his opinion:

[W]hile a candidate on the campaign trail, the President published a “Statement on Preventing Muslim Immigration” that called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on”…Then-candidate Trump also stated that “Islam hates us” and asserted that the United States was “having problems with Muslims coming into the country.” Shortly after being elected, when asked whether violence in Europe had affected his plans to “ban Muslim immigration,” the President replied, “You know my plans. All along, I’ve been proven to be right” …[O]ne of the President’s campaign advisers explained that when the President “first announced [the first proposed ban], he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally’…[A]fter issuing [the first replacement order], the President expressed regret that his prior order had been “watered down” and called for a “much tougher version” of his “Travel Ban.” Shortly before the release of the Proclamation, he stated that the “travel ban . . . should be far larger, tougher, and more specific,” but “stupidly that would not be politically correct” …[Thereafter,] the President retweeted links to three anti-Muslim propaganda videos.

[Trump v. Hawaii (2018).]

Roberts immediately contrasted Trump’s conduct with that of other presidents who used their power to speak inspiringly to the Nation “to espouse the principles of religious freedom and tolerance on which this Nation was founded.” Notably, he gave examples of presidents, beginning with Washington, who spoke out against bigotry against Jews and Muslims. But then, pointedly, he remarked that “Presidents [have] performed unevenly in living up to those inspiring words.” Trump, anyone?

Beyond his apparent contempt for the man now occupying the White House for a second time, Roberts has also written opinions for the Court or voted in support of such opinions that rejected Trump’s pet policies or his defenses in cases against him. Despite the conventional wisdom otherwise, Roberts and his Court have actually stymied Trump and his administration numerous times in recent years, in addition to the tariffs case.

We’ll take a look at some of these in the next post. 

Amy Coney Barrett (Part 2)--"Non-Hack"

Source: Elizabeth Frantz/NY Times

“The Supreme Court’s second-newest justice is proving herself to be a non-hack —to the increasing consternation of MAGA.”

That's Matt Ford, Associate Editor of the politically liberal The New Republic magazine.

But it's not just liberals who have nice things to say about Justice Amy Coney Barrett. Edward Whelan, former law clerk to Justice Antonin Scalia, holder of the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center, and one of the nation's foremost conservative legal commentators had this to say: "She’s a careful, precise thinker, and she’s been thrust into this very volatile environment.” 

Jodi Kantor, who has reported behind-the-scenes stories about the Supreme Court for the New York Times, compared Barrett favorably to others on the Court: "Justice Barrett has favored a more deliberate approach than some of her colleagues."

These views of Amy Coney Barrett are far more common among the less-partisan observers of the Court than those of the uber-MAGA crowd, some of which were included in the previous post. (See Amy Coney Barrett (Part 1)--"Rattled Law Professor.")

Again, the facts. Here is my graph from the previous post that shows how Justice Barrett has been voting:

(click to enlarge for a better view) 

In the 29 ideologically laden cases last term--i.e., those clearly identifiable as "politically conservative" versus "politically liberal" among the 64 full-appeals decided--Barrett was unmistakably on the conservative side of the Court. No doubt about that when her 62% conservative voting is contrasted with the 7% and 10% conservative records of Justices Jackson and Sotomayor, respectively. Of course, her record is also a far cry from the 93% conservative voting of both Justices Thomas and Alito. So yes, it's clear to see why she would be a disappointment to the partisans who expected her to be or hoped her to be far more ideologically disposed.

But worse than that for the most die-hard Trump supporters is her record in cases directly involving Trump himself or his policies. Let's take a look at Barrett's record, as well as those of her colleagues, in those cases.

There were 22 such cases. These included 16 that were decided on an emergency basis--i.e., the so-called "shadow docket," where there were no arguments held and no full briefing. Just a petition for relief by a party unhappy with a decision by a lower court, and a vote in conference by the Justices to grant or deny the request. 

In fact, most of the cases directly involving Trump or his policies were decided that way last term. And most of the time, the Court's majority gave absolutely no reason for its decision. As the headline from one of veteran Court reporter Adam Liptak's column summarized the situation: “Supreme Court Keeps Ruling in Trump’s Favor, but Doesn’t Say Why.” (NY Times, July 16, 2025.) 

Here's what the voting looked like in all those 22 "Trump Cases"--full appeals and "emergency" decisions: 

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As was clear from the previous graph showing Justice Barrett's 62% politically conservative voting in the full appeals, her 68% voting in favor of Trump and his policies, as depicted above, is hardly the record of a political liberal. Certainly not when contrasted with the 0% and 5% pro-Trump voting of Justices Jackson and Sotomayor.

But neither is Barrett's record even close to the 100%--yes, 100%--pro-Trump voting of both Justices Thomas and Alito. No, Justice Barrett's voting in the cases directly involving Trump or his policies--full appeals plus emergency decisions--is not a record of a blind partisan. Not a record of a blind Trump loyalist. Hence, the ire of the uber-Trumpists and the respect of just about everyone else. Even cautious optimism among some liberals.

By way of illustration, Barrett's record this year included voting in a 5-4 majority to order the Trump administration to unfreeze nearly $2 billion in foreign-aid reimbursements, in another 5-4 majority refusing to recognize Trump's claimed presidential-elect immunity, in a 6-3 majority to preclude presidential hiring and firing of certain "lesser" executive officials, and in dissent with the three liberal Justices to uphold broad authority of the Environmental Protection agency. 

Lest it be thought that Justice Barrett's voting last term could have been an aberration. Perhaps it was a particular mix of cases that resulted in her voting "pro-Trump" much less than other Republican appointees on the Court. It turns out that Barrett's record in cases involving Trump or his policies has consistently been much less pro-Trump than some of her colleagues.

Indeed, eminent Supreme Court scholar Lee Epstein, who probably tracks the voting records of the Justices more closely than anyone else, has compiled all the votes on former and current President Trump since Justice Barrett was appointed to the Court--by Trump--in 2020. Here's what Lee Epstein and her colleagues found: 

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According to the Epstein & Colleagues calculations, Barrett has voted pro-Trump less than any other Republican appointee. Her 59% record since she joined the Court is not only just above 50-50 pro-Trump, but it is a far cry from the 94% for Justice Alito and the 88% for Justices Gorsuch and Thomas.

To be sure, her voting is also a far cry from the heavily anti-Trump records of Justices Sotomayor, Jackson, and Kagan. But still, Barrett's record is hardly one to be applauded by the MAGA crowd or even the more moderate Trump partisans. 

A "rattled law professor," "Amy commie Barrett," "evil," and "a disgusting fraud." Or perhaps a "non-hack," "careful, precise thinker," one who "favor[s] a more deliberate approach than some of her colleagues."

Well, the facts of Justice Barrett's voting record demonstrate that she is certainly a political conservative. She wouldn't be confused with a liberal--let alone a communist. Except by the most ideologically or politically fanatical out there.

But neither does Justice Barrett's record confirm what many political liberals feared she would be. Nor does it confirm the view adhered to by many political liberals that she remains hopelessly tied to the right wing of the Court. Conservative, yes. But also a Justice who, like Justices Sandra Day O'Connor and Anthony Kennedy before her--or even John Marshall Harlan II before them--has a strong, confident, independent streak. She has shown herself to be unafraid and unhesitant to break from her usual or expected ideological allies on some of the most politically-charged cases before the Court.

Amy Coney Barrett (Part 1)--"Rattled Law Professor"

Source: Allison Robbert/NY Times

The complete line: "She’s a rattled law professor with her head up her a**."

By the way, that's from a gentleman named Mike Davis, speaking on Steve Bannon's podcast. This Davis fellow actually served as the head counsel for nominations for the Republican Chair of the U.S. Senate Judiciary Committee. Shortly before that, he had urged that Neal Gorsuch be appointed to the Supreme Court, and then he was hired by Gorsuch to be his law clerk.

Davis & Gorsuch, hmm!

[In all fairness to Justice Gorsuch, Davis only lasted, for whatever reason, a few months in Gorsuch's chambers.]

Davis is hardly the only supposed "conservative"--i.e., here, referring to a Trump die hard--who's unhappy with Justice Barrett.

There's the oh-so dignified "Catturd"--his trademark--Phillip Buchanan, who posted this: "Amy Commie Barrett—she’s been an ungrateful, backstabbing POS since day one."  So she's a backstabber, an ingrate, and....a communist? Well, she's each of those because she doesn't vote in support of everything and anything that Trump and his administration try to do. Oh, also, she's "an Absolute disgusting fraud."

Then there's the social-media "influencer," Michael Cernovich, famous among other reasons for calling date rape "a liberal fiction." He summarised his thoughtful appraisal of Justice Barrett this way: "She is evil." So more than rattled or ungrateful or even disgusting. She's actually evil!

Mark Levin, the FOX News host, was a bit softer in his assessment: "The power has gone to her head."

Then there's Trump confidant and travel companion, Laura Loomer, who was among those who figured that their disappointment was to be expected: "Amy Coney Barrett was a DEI [diversity, equity, and inclusion] appointee." 

And according to numerous sources, Trump himself has been complaining about Barrett--as well as his other appointees for not marching in lockstep. In fact, he's expressed his fury about Leonard Leo, the leader of the Federalist Society. Trump apparently blames Leo for his advice on judicial appointees. Trump has ranted that Leo is "a real sleazebag...who in his own way probably hates America."

But back to Barrett.

Beyond all this unhinged commentary--along with the vicious and vile outpourings of agreement by the commentators' fans--is Barrett's record. Here is how she, as well as her colleagues, have been voting:

 (click to enlarge for a better view) 

This graph represents the Justices' voting and the Court's decisions in all 29 "conservative" versus "liberal" cases last term. That is, the 29 cases which--after examining all 64 full appeals decided in the Court's most recent term--could be identified as having an issue with a clear politically "conservative" versus politically "liberal" side.*

 *[The terms "liberal" and "conservative" are used here, as in judicial studies generally, to identify patterns, social and political, reflected in the decisions and votes of judges and the courts on which they sit. See e.g., my discussion, ‘Liberal’ Justices, ‘Conservative’ Justices, in  Supreme Shift: What the 6-3 Conservative Majority Means Going Forward, 93 NYSBA Journal 9 (Jan./Feb. 2021).

This is especially true and revealing when considered over the course of ideologically charged “hot-button,” issues where, for example, “conservative” Republican politicians and voters would typically support one position, while “liberal” Democratic politicians and voters would typically support the other.]   

As the graph shows, Justice Barrett can hardly be viewed as a liberal. Compare her voting record to that of the two unquestionably liberal Justices, Jackson and Sotomayor. They supported the conservative position in only 7% and 10% of these cases, repectively. Barrett did so much more regularly and, indeed, more than half of the time; 62% in these close, divided cases. 

To be sure, Barrett's voting record is a far cry from that of the staunchly conservative Justices Thomas and Alito--both at 93% conservative. Apparently, that's the kind of voting her right-wing critics wanted and what many of them, including Trump, were expecting. 

Beyond that, what is perhaps the most telling aspect of Justice Barrett's record, at least for the fury within the Trump camp about her, is her voting in those cases specifically involving Trump, or involving policies especially advanced by him and his administration. Think immigration, firings without cause, environmental regulations, witholding funds from states that don't embrace his policies, etc. 

In the next post, we'll focus on Barrett's and her colleagues' voting in those cases. 

[For those of you experiencing deja vu--Yes, Yogi, all over again--I have written about Justice Barrett previously, and about aspects of her voting record at that point. See Part1: Amy Coney Barrett; Part 2; and Part 3.]

Supreme Shift: Ginsburg to Barrett (Part 1)

The magnitude of the shift was certainly not matched by a magnitude of serious deliberation.

Olivier Douliery/AFP

Justice Ruth Bader Ginsburg died on September 18th. President Trump nominated Judge Amy Coney Barrett to fill the resulting vacancy a mere eight days later. One and a half weeks later, on October 5th, Senator Lindsey Graham scheduled a four day confirmation hearing. It began the next week.

Democrats decried the hypocrisy of the Republicans who had refused to hold a hearing during an election year when President Obama nominated Judge Merrick Garland. The Democrats also sounded alarms about the likely ramifications of an ideologically conservative Barrett replacing liberal Ginsburg. Republicans, not surprisingly, insisted that there was no such hypocrisy. They also lauded Barrett's avowed judicial restraint in decision-making, while insisting that her asserted embrace of originalism and textualism had nothing to do with any perceived ideological bent. After four days, the pre-ordained result seemed nothing but pre-ordained.

Whatever the partisan wrangling and dissembling may otherwise suggest--about the Barrett nomination and Barrett herself--there are some simple realities. Ruth Bader Ginsburg was selected by Democratic President Bill Clinton. She was heralded for her successful litigation on behalf of equal rights for women, and her record on the Court over 27 years was unmistakably liberal across the wide swath of issues from abortion rights to affirmative action to gender equality to immigration to LGBTQ rights to racial justice to the rights of the accused, etc.

By contrast, Amy Coney Barrett was selected by Republican Donald Trump. Her nomination was urged by supporters because of her ideological leanings that are distinctly contrary to those of Ginsburg, and for her judicial record which, albeit brief, reflects a polar opposite jurisprudence. In short, by all accounts, she is very ideologically conservative.

So let's take a look at the change that's in store--a change for the Court with a Justice Barrett who presumably would behave consistently with her record as Judge Barrett.

Here's what the ideological line-up of the Justices looked like in the immediately past term, with Ginsburg still on the Court:

(click to enlarge)

When considering those issues where there is a clear divide between liberals and conservatives, there is a clear breakdown of the Justices. As depicted above, the liberal or "left" wing of the Court has included Justices Sonya Sotomayor and Ruth Bader Ginsburg, as well as Stephen Breyer and Elena Kagan whose records have been slightly--and just slightly--more ideologically mixed. On the Court's conservative or "right" wing are Justices Clarence Thomas and Samuel Alito, followed closely by Neil Gorsuch and, somewhat less ideologically consistent, Brett Kavanaugh. More ideologically mixed, yet still conservative--especially when contrasted with the Court's liberals--is the Chief Justice, John Roberts.

But what about the terms "liberal" and "conservative"--how exactly are those terms being used? Well, not at all as synonymous with so-called judicial "activism" versus "restraint," loose versus strict interpretation, adherence to precedents and deference to the elected branches versus the opposite. No, none of that. Those dichotomies tell us precious little about judges being ideologically "liberal" or "conservative."

Rather, just think about liberal Democratic politicians and their supporters contrasted with conservative Republican politicians and theirs. Think about those issues where those two camps generally and usually vehemently divide. Think separation of church and state, gun rights, LGBTQ rights, affirmative action, abortion rights and other women's rights, voting rights, immigration, the death penalty, environmental regulations, worker rights versus business, campaign finance, and, of course, Trump. When considering those "hot button" issues and how the Justices vote on them, there are clear patterns. That's what's depicted in the line-up, and that's how we popularly and pretty accurately characterize the Justices.

So it's certainly no surprise that on those issues just listed, as well as other similarly "hot button" matters, Justices Sotomayor and Ginsburg rarely, if ever, voted on the same side as Justices Thomas and Alito. Indeed, all four liberal Justices were almost always on the opposite side of Thomas and Alito. Moreover, it was uncommon for any of the the four liberals to be on the same side as any of the four most conservative Justices. And among the Court's conservatives, only the Chief Justice--at least during the past two terms--sided with the liberals on a somewhat regular, if not usual, basis.

So, the line-up has been 4 liberals and 5 conservatives on the Court--again, with the Chief Justice's voting record being more moderate or centrist than the other conservatives, at least within the Court's ideological spectrum. Let's look at that line-up once more before looking at the change that's in store if Judge Barrett is confirmed. 

(click to enlarge)

Now, let's remove Ginsburg from the depiction and add Barrett:

(click to enlarge)

Based upon the politically conservative groups that urged the nomination of Judge Amy Coney Barrett, the promises President Trump has made about the kind of judges and Justices he would nominate, the support Barrett has been receiving from politically conservative Republican Senators, her academic writings and lectures, her record as a federal appellate judge--based on all of that evidence, there is every reason to believe that a Justice Barrett would be positioned firmly within the politically conservative wing of the Court. That is, there is every reason to believe that she would be voting with the politically conservative Justices on the politically conservative side of the liberal versus conservative, "hot button" issues.

Based on the previously listed evidence, it is safe to assume that her ideological bent is no less conservative than that of Trump's first two nominees, Gorsuch and Kavanaugh. Indeed, she might well be even more ideologically aligned with most conservative among the conservative Justices--i.e., Thomas and Alito.

At the least, her appointment to the Court would alter the previous 5 to 4 politically conservative majority on the Court--or the arguable 4 to 4 ideological balance with Chief Justice Roberts as the "'swing" vote. That would change to a 6 to 3 conservative majority--or arguably a 5-4 conservative majority with Roberts splitting his votes between the Court's two ideological wings. Putting the change more starkly, Judge Barrett's addition to the Court, filling the Ginsburg vacancy, would mean twice as many politically conservative Justices on the Court as liberals. Even more stark? The politically conservative Justices would still constitute a majority without Roberts' vote. The liberals on the Court would need two of the politically conservative Justices to vote their way to ever reach a majority.

To be sure, it is within the realm of possibility that Judge Barrett might experience an ideological and jurisprudential conversion over her tenure on the Court. It has certainly happened to others. Republican appointees have sometimes transitioned to staunch jurisprudential liberals. Nixon appointee Harry Blackmun, Ford appointee John Paul Stevens, and Bush (41) appointee David Souter come readily to mind. And Reagan appointees Sandra Day O'Connor and Anthony Kennedy, even if never quite liberals, both became "swing votes" during their tenures, joining their liberal colleagues on some major social issues.

Absent such a dramatic ideological transformation, however, Judge Barrett's addition to the Court will result in a dramatic ideological transformation of the Court itself. Amy Coney Barrett replacing Ruth Bader Ginsburg? That is dramatic. 

One more note before concluding. Imagine for a moment that remote chance that the Barrett nomination were to fail. What would the Court look like if a President Biden, rather than President Trump, were to fill the Ginsburg vacancy? Take a look:

(click to enlarge)

A Biden appointee to fill the Ginsburg vacancy would not change the ideological line-up of the Court from what it has been. Presumably, Biden would nominate a political liberal, someone in the mold of a Ginsburg or Sotomayor--or Breyer or Kagan. His nominee would certainly not be in the politically conservative mold of a Thomas or Alito or Gorsuch or Kavanaugh--or even Roberts. But such a nominee, if successfully appointed and then aligned with the other liberal Justices, would merely keep the Court's ideological line-up as it was before: 5 politically conservative Justices to 4 liberals, or 4 to 4 with the Chief Justice as the swing vote.

In short, with Trump's pick--a dramatic ideological shift to the right. With a Biden pick--status quo ante; no liberal tilt.

In the next post, we'll consider Barrett's record as a federal appellate judge on the 7th Circuit.

It's Roberts' (somewhat less right-wing) Court (Part 3)

As this is being prepared, the 5-4 Court--Roberts voting with the liberals--invalidated the Louisiana abortion restrictions. More on that and on that continuing pattern below.

Source:Reuters/Leah Mills

We've previously looked at Chief Justice Roberts' breaking with his conservative colleagues and aligning with the Court's liberals to help form majorities in politically charged cases dealing with Obamacare and immigrantion (see Part 1), and LGBTQ rights and the death penalty (see Part 2). The point is not that I applaud his doing so (although I do, and wish he did so more regularly). The point is that he has been doing so and, whatever else political liberals may think of him, it simply cannot be denied that on some major issues he has prevented the Court from veering off too far to the right.

Let's finish this series by recalling a few other decisions reflecting the same pattern. Perhaps these cases, like those we've previously discussed, evince a Chief Justice concerned primarily about the legitimacy of his Court, i.e., rebuffing criticisms that it is just another institution polarized along partisan lines. Perhaps it's Roberts holding his Court together by giving the benefit of the doubt to the Court's liberals--at least every once in a while in close cases where he could honestly support either side. Perhaps it's the Chief Justice upholding the integrity of the Court's authority by supporting precedents against which he had originally dissented (as he just now did again in the Louisiana abortion case). Or perhaps it's actually the Chief Justice changing his mind after some time for reconsideration.

Again, whatever the reason--and likely there are different reasons in different cases--the emerging pattern is clear. Roberts has given political liberals, both on and off the Court, some significant victories

(Of course this has not escaped the President's notice--and ire.)


Okay, enough with preliminaries. Let's get to the last few cases we'll look at in this series that illustrate the pattern that may well be the most salient characteristic of this otherwise quite politically conservative Court.

Church and State. Late last month, the Chief Justice joined his liberal colleagues in refusing to lift the COVID-crisis restrictions on church attendance that had been imposed by California's governor. Roberts' 4 conservative colleagues all dissented. Justice Kavanaugh, in an opinion joined by Justices Thomas and Gorsuch, argued that the numerical limitations on gatherings and the requirement for social distancing unconstitutionally discriminated against religious exercise. This was so, according to Kavanaugh, because other similarly situated  activities did not face such restrictions. [Alito's dissenting vote was simply noted.]

Although the Court's decision was merely an order, Roberts' authored an opinion explaining why the majority got it right. The standard for granting emergency relief is that the constitutional merits are already "indisputably clear." Roberts deemed it "quite improbable" that the religious objectors could show that. Two basic reasons. First, despite the dissenters' claim, "only dissimilar activities...in which people neither congregate in large groups nor remain in close proximity for extended periods" are treated more leniently than churches. Second, the need for restrictions "during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement," which the Constitution "principally entrusts" to the "especially broad" latitude of the states' political officials. And such matters of public health and safety should usually "not be subject to second-guessing" by the federal judiciary.

In short, the Chief Justice disagreed with his conservative colleagues that the religious objectors had demonstrated that they were being treated disparately or too harshly. South Bay United Pentecostal Church v. Newsom, 2020.

Three years earlier, in another church-state case, Roberts held the middle ground to which some of his conservative colleagues and some of his liberal colleagues objected--naturally for different reasons. Writing the opinion for the Court, the Chief Justice explained that the ineligibility of religious organizations from a state program that subsidized the safety improvement of school playgrounds violated free exercise--i.e., the disqualification discriminated on the basis of religion, despite the purely secular purpose of the program's assistance.

Although Justices Kennedy and Alito joined Roberts' opinion in full, Thomas and Gorsuch objected that the ruling was too limited--i.e., it should not have been limited to playground safety, nor to secular versus religious uses.

While Justice Kagan fully joined Roberts' opinion, Breyer wrote a separate concurence to emphasize that the program in question, as well as the Court's ruling, was limited to a public service--here "the health and safety of children." The remaining liberals, Justice Sotomayor joined by Ginsburg, dissented on the ground that directly funding a religious organization violated the constitution's non-establishment mandate.

Here, as we have seen elsewhere, the Chief Justice struck a balance. He crafted a ruling that was narrow enough to secure a majority, despite differences or even dissents from some of his more ideologically-driven colleagues--conservative or liberal. Trinity Lutheran Church of Columbia, Inc. v. Comer, (2017).

Right to Choose/Abortion Rights. Four years ago, in Whole Woman’s Health v. Hellerstedt, the Court ruled that a Texas law, that limited which physicians and facilities could provide abortion servoces, imposed an unconstitutional "undue burden" on a woman's right to choose. Chief Justice Roberts dissented, along with his conservative colleagues, Justices Thomas and Alito. [Justice Scalia had recently passed away and his vacancy had not yet been filled.]

Since that decision, Justice Gorsuch was appointed to fill Scalia's seat, and Justice Kavanaugh was appointed to replace Justice Kennedy who had retired in the interim. With Kennedy now missing from the 5 Justices who comprised the majority in Whole Woman’s Health, the Court was confronted this term with another case term involving similar abortion retrictions. This time the state was Louisiana, but the restrictions, the prospective consequences, and the outcome were similar. Only physicians with privileges at a nearby hospital could perform abortions. The restrictions would drastically reduce the availability of abortion services. The restrictions were ostensibly to protect the health of women. The restrictions, according to expert analysis, actually had minimal health-related benefits. And the Court again found such restrictions to be an unconstitutional burden on a women's right to choose.

The big difference? This time the Chief Justice sided with the liberals to give them the bare 5-4 majority. In a separate concurrence, Roberts insisted that he still believed that Whole Woman’s Health was wrongly decided. But, in a 16 page opinion in which he reviewed the reasons for stare decisis and the Court's abortion rights precedents to date, the Chief Justice set forth a jurisprudence that has become a distinctive part of his opinion and voting patterns: "The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike." [My emphasis.] Then, he concluded by applying that formula to his vote in this case: "The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law"--despite his disagreement then. June Medical Services L. L. C. v. Russo, 2020.
[Notably, Roberts signaled his thinking about this case when, in February 2019, he joined the liberals to form the same 5-4 majority to grant an order stopping the Louisiana law from taking effect while litigation was pending.]

One last one. This is one of my very favorites. I've written about it previously on New York Court Watcher.

Technological Searches. In the last few decades, the Court has seriously diluted constitutional search and seizure protections. It has done so, for example,

• by adding exceptions to the warrant requirement (e.g., warrantless searches and seizures incident to minor traffic infractions);
• by adding exceptions to the rule excluding unconstitutionally obtained evidence (e.g., the "good faith" exception);
• by diluting what is required for probable cause (i.e., the "totality of the circumstances" test);
• by diluting the 1967 landmark Katz decision which protected legitimate expectations of privacy (e.g., denying legitimacy to a host of privacy expectations);
• by (mis)using that landmark's formula in order to rule that searches are not "searches" for constitutional purposes (e.g., police searches from a hovering helicopter);
• by employing doctrines such as "third party" (i.e., if anyone else has access to information about you, then government needs no warrant or probable cause to access it);
• and "public access" (i.e., if members of the public can see you in a public place, then government can surveil you without a warrant or probable cause);
• and "tresspass" (i.e., equating search and seizure rights to property rights whereby a physical tresspass is necessary to constitute a violation);
• by limiting search and seizure protections to those specific items enumerated in the 4th Amendment.

Well, two years ago, Chief Justice Roberts joined the liberals and, in the 5-4 majority opinion he assigned to himself, he avoided or simply dispensed with some of those foregoing dilutions--to the considerable consternation of his more law and order minded colleagues. Roberts wrote that a warrant supported by probable cause is required for law enforcement to access cellphone location data about a suspect from a cellphone company. No, the fact that some entity, the company itself, already had access to the information (i.e., the third party doctrine) didn't allow the government to have warrantless access. No, the fact that the data did not belong to the individual, but to the company (i.e., the property rights/tresspass doctrine), didn't mean that the individual was without some entitlement to privacy from the government. No, the fact that the individual's movements and location in public might be observed by members of the public (i.e., public access doctrine), didn't mean that he had no legitimate expectation of privacy from government surveilance. Etc.

Yes, acknowledged Roberts, the Court's opinion six years earlier in U.S. v. Jones, authored by Justice Scalia, did assert that the warrantless monitoring of a suspect's movements and location was unconstitutional because the police had "tresspassed" on his property--i.e., by attaching a GPS device to his vehicle without his consent. But, the Chief Justice pointed out that a majority of the Justices in Jones had actually reaffairmed the Katz "legitimate expectation of privacy" doctrine. There was Justice Alito and the 3 liberals who joined his concurring opinion, stridently rejecting Scalia's tresspass analysis in favor of Katz; and Justice Sotomayor who authored a separate concurrence, joining Scalia but also reaffirming Katz.

As Roberts explained in declining to apply some of the previously adopted doctrines, "few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements." He went further: "Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily 'assume[] the risk' of turning over a comprehensive dossier of his physical movements."

The concerns expressed by the Chief Justice in his majority opinion sounded much more like those of the liberal Justices who had previously dissented while the Court was diluting search and seizure protections. And Roberts' conservative collegues in this case understood that and objected to his aligning with the liberals in refusing to apply those law and order doctrines. Carpenter v. U.S., 2018.
[For more on the Carpenter decision, see The Supreme's Cell Location Data Decision: Right, Revealing, and a Real Milestone, June 26, 2018.]

There are other cases--an increasing number of them at that--where Chief Justice Roberts has indeed established a distinct pattern of parting with his usual ideological allies on the Court and siding with the liberals to form a majority on some major, highly-charged issues. That point, I believe, has been well made, and continuing further is not only uneccessary but perhaps fatiguing. So we shall end here.

Of course, decisions handed down by the Court in the next few days, as the current term comes to a close, may well make all of the foregoing seem like wishful thinking based on a a few isolated exceptions. But the pattern is there, it is clear, and there no particular reason to think that it won't continue.

It's Roberts' (somewhat less right-wing) Court (Part 2)

Source: AP/Dave Tulis/Larry Downing

In Part 1, we saw how Chief Justice Roberts joined decisions that saved so-called Obamacare and that protected immigrants. In those cases, he often authored the majority opinion himself, allying himself with his liberal colleagues to render decisions that triggered unconcealed outrage on the part of all or most of his conservative colleagues in dissent.

We witnessed exactly that last week in the DACA case (Department of Homeland Security v. Regents of the University of California, 2020) which was discussed in the previous post. Let's now turn to last week's other momentous decision, as well as an earlier related one that is, perhaps, even more revealing about the role and direction of Roberts as the primus inter pares.

LGBTQ Rights.  In a long-awaited decision--it took over 8 months from oral arguments on October 8, 2019--the Court ruled last week that the prohibition against "sex" discrimination in the Civil Rights Act of 1964 protects gay and transgender employees. The Chief Justice joined his 4 liberal colleagues, as well as one of the Trump-appointed conservative Justices, Neil Gorsuch, to whom he assigned the writing of the majority opinion.
Over the dissents of the 3 remaining Republican appointees [Thomas, Alito, and Kavanaugh], the Roberts-assigned/Gorsuch-penned majority opinion agreed with the fired employees that discrimination on the basis of "sex" necessarily covered discrimination against gays and transgenders. The crux of the argument [distilled from what I found to be a mostly insufferable 33 pages] was that the term "sex," as a matter of sheer linguistics and logic, does apply to gays and transgenders, even if that application was not within the underlying legislative intent of the law.
The 3 remaining conservatives wrote 134 combined pages of dissent. Justice Samuel Alito's seething 107-page opinion, joined by Justice Clarence Thomas, as well as the separate dissent of Justice Brett Kavanaugh, evinced frustration triggered not only by the Court's decision, but no doubt also by the loss of another Roberts vote to the liberals--this time, together with Gorsuch's vote as well. Bostock v. Clayton County, 2020.

[I feel compelled to add that, regardless of my unqualified agreement with the Court's result, I find much of the majority opinion unnecessary, unpersuasive, and perilous. The same decision could have been reached by simply sticking to the inexorable logic of what sex discrimination necessarily includes. (E.g., if a woman prefers men, that's ok. But if a man does, that's not? The only difference is the different sex of the person who prefers men.)
Beyond that, a far better majority opinion, in my view, would have embraced the overarching principle in prohibiting sex discrimination. Sex and sex-related characteristics are utterly irrelevant for most purposes. For like reason, most disparate treatment on those bases is born of bigotry or some other form of ignorance, rather than some justified reason--which is precisely what discrimination means.
On the other hand, Gorsuch’s "it’s clear from the original understanding of the plain terms of the statute" argument (I’m paraphrasing) can be expected to be used in the future to support reactionary results. The 6 votes his opinion received will surely be used as a strong endorsement of his insistent originalism—i.e., the “ordinary public meaning” of the terms of the law “at the time of the enactment" (his language)—about which he waxed and waned ad nauseam. This will be thrown back at the liberals--all of whom joined his opinion without a whisper of discomfort--when he and the other conservatives (including those in dissent in this case) use it in future cases to undercut past progress and block attempts to move the law forward.
I wish at least one of the liberal Justices had authored a separate concurrence making clear that they weren’t endorsing Gorsuch’s originalist interpretive approach. The need to do so should have been especially clear in light of Alito's dissenting opinion. Regarding what "sex discrimination" was understood to mean "at the time of enactment," Alito's dissent had the much stronger argument. Just consider this: would the law's prohibition of "sex discrimination" have been passed--"at the time of enactment" in 1964--if legislators were told that those terms protected gays and transgenders as well as women? Now ask the same question about progressive interpretations of countless other statutory and constitutional provisions. The liberals should at least have expressed their reservations about the originalism touted by Gorsuch.
Others have raised similar concerns. See e.g., Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion. https://abovethelaw.com/2020/06/neil-gorsuch-lays-landmines-throughout-lgbtq-discrimination-opinion/]

An earlier decision of the Court, three years before Bostock, was arguably more revealing about Roberts' view of his role as Chief Justice (as well as of Gorsuch's view of LGBTQ rights). Roberts' position in that earlier case took many by surprise because he had dissented two years before in Obergefell v. Hodges (2015).  In Obergefell, Roberts, together with the other Republican appointees-- except for Justice Anthony Kennedy--had rejected the notion that the Constitution guarantees same-sex couples the right to marry. But in 2017, Roberts broke with the Court's conservatives and, aligning with the Obergefell majority, helped reaffirm that landmark decision.
In a per curiam opinion, with the Chief Justice in the 6-3 majority, the Court invalidated an Arkansas rule that treated same-sex and opposite-sex spouses differently on their children's birth certificates. While the male spouses of biological mothers were entitled to be identified, female spouses were not. Repeatedly quoting from the Obergefell majority opinion--against which the Chief Justice had originally dissented--Roberts, together with his 4 liberal colleagues and Justice Kennedy, summarily granted review, reversed the state's supreme court, and struck the Arkansas practice on the ground that "the Constitution entitles same-sex couples to civil marriage 'on the same terms and conditions as opposite-sex couples.'”
Justice Gorsuch, this time writing a dissent, which was joined by Thomas and Alito, argued that, although the Obergefell decision held that "a State must recognize same-sex marriages," it said "nothing" about "a birth registration regime based on biology." In response, the Roberts-joined per curiam majority noted that opposite-sex spouses identified on Arkansas birth certificates need not be biological parents. Applying another line excerpted from Obergefell, the Chief Justice and his more liberal colleagues concluded that Arkansas has "denied married same-sex couples access to the 'constellation of benefits that the Stat[e] ha[s] linked to marriage.'” Pavan v. Smith, 2017.

Roberts had thus apparently decided that his role as Chief Justice included adhering to the Court's recent progressive landmark and opposing attempts to undermine it--regardless of his original position on the matter.

Death Penalty/Intellectual Disability. A similar pattern is evident in positions taken by Roberts in some recent death penalty cases. He had dissented in Moore v. Texas when that case came before the Court in 2017. The Court's majority ruled that the state court's judgment that the death row inmate was mentally competent to be executed "had no grounding in prevailing medical practice." Accordingly, the case was remanded for a determination "informed by the medical community’s diagnostic framework." Roberts dissented on the ground that the "independent basis for [the state court's] judgment" was adequate.
When the case returned to the Supreme Court two years later, the majority once again disapproved the state court's determination that the inmate was competent. This time, however, the Chief Justice broke with the conservative dissenters [Thomas, Alito, and Gorsuch] and joined the majority [which notably included Justice Kavanaugh]. Despite Roberts' own previous dissent, he acknowledged that the Texas determination "did not pass muster under this Court’s analysis last time" and, because "[i]t still doesn’t," he joined the majority's opinion to again reverse the state court's judgment. Moore v. Texas, 2019.

The Chief Justice joined his liberal colleagues in several other related death penalty cases in 2019. A few weeks prior to the Court's decision in Moore, Roberts signaled his break with his conservative colleagues in White v. Kentucky. In that early 2019 decision, he joined the majority's order [over the dissent of Thomas, Alito, and Gorsuch] to grant review and simultaneously, without argument, reverse a judgment of the state's supreme court--on the basis of the Court's earlier 2017 Moore decision.
Similarly, in Madison v. Alabama, also decided in early 2019, Roberts again broke with his conservative colleagues [Thomas, Alito, and Gorsuch]. In that case, he sided with the liberals to vacate the judgment of the state court that had approved an execution. He joined Justice Elena Kagan's majority opinion that the Constitution prohibits executing a person who is unable to understand why he's being punished, regardless of the particular intellectual disability he suffers, dementia or psychosis.
One more. In Murphy v. Collier, decided several weeks thereafter, the Chief Justice again sided with his liberal colleagues to halt to another execution. Over Justice Alito's dissenting opinion, which was joined by Thomas and Gorsuch, the Roberts-joined majority summarily enjoined Texas from carrying out the execution, at least until it first granted the inmate's request to be accompanied into the chamber by a Buddhist chaplain.

To be sure, Chief Justice Roberts' positions in the cases thus far discussed do not mean that he has transformed into an ideological liberal. But they do demonstrate a pattern of willingness to break with his more natural political allies on the Court and, moreover, to do so on some of the most highly charged issues of the day.
We'll look at a few more of these in the next and final post in this series.

It's Roberts' (somewhat less right-wing) Court (Part 1)

Source: Reuters//Jonathan Ernst

Sure, let's not go overboard. Despite some recent decisions welcomed by political liberals, the Supreme Court has hardly turned liberal.

Indeed, most decisions of the past year--let alone of the last few decades--have been those favored by political conservatives. Whether in civil rights and liberties, the rights of the accused, employment and labor law, war and foreign affairs, and other crucial areas that define the nation's principles, the Court has largely rendered rulings that conservative Republican politicians would reach if up for a vote in their elected representative chambers.

         BUT...

Neither can it be denied that the Court has issued some major politically-liberal decisions. And the difference often has been Chief Justice Roberts. He is the one who, more than any of the other conservative Republican appointees, has deviated from the Court's typical partisan divide.

There were some indications, even before the retirement of "swing vote" Justice Anthony Kennedy, of Roberts disrupting the holy political alliances among the Justices. ("Holy," because some members of the Court, such as the late Justice Antonin Scalia, would react to Roberts breaking with the conservatives as though it were blasphemy, heresy, or some other mortal religious transgression.) But the Chief Justice's breaking with the other conservatives has in the past few years become a foreseeable--if not expected--phenomenon of Court dynamics.

A quick survey of some major decisions in which Roberts voted on the politically liberal side of a hot-button issue should leave little doubt. Oftentimes, the Chief Justice authored the majority opinion himself--meaning that he often assigned the Court's opinion to himself in these high profile cases. And oftentimes, his vote was the deciding one in giving his liberal colleagues a victory over his usual conservative allies. Here's a sample:

Obamacare. Perhaps Roberts' best known break with the conservatives was his saving of Obamacare: his dispositive opinion for the 5-4 majority--himself and the Court's 4 liberals--upholding the constitutionality of the Affordable Care Act's "individual mandate." He did so, over the bitter opposition of the other 4 Republican appointees [Scalia, Kennedy, Thomas, and Alito], by characterizing the enforcement mechanism as a tax imposed within Congress's power, rather than an otherwise invalid penalty. National Federation of Independent Business v. Sebelius, 2012.

Three years later, Roberts again saved a major aspect of Obamacare: his 6-3 majority opinion--joined by all 4 liberals and Justice Kennedy [with Scalia, Thomas, and Alito dissenting]--upholding federal tax subsidies for all lower-income Obamacare insureds, even if their state declined to set up an insurance exchange. King v. Burwell, 2015.

Immigration. Like Obamacare, there are, of course, the immigration issues that have been among the most contentious and divisive along party lines. And like Obamacare, the Chief Justice saved DACA [the Deferred Action for Childhood Arrival program] from partisan attempts at elimination. In his majority opinion, this past week, for himself and the Court's 4 liberals--once again raising the ire of the other conservative Republican Justices [Thomas, Alito, Gorsuch, and Kavanaugh]--he declared the Trump administration's attempt to scrap DACA "arbitrary and capricious."
Moreover, Roberts made clear his determination that the administration's proffered reasons were dishonest, labeling them "post-hoc rationalizations" and "convenient litigation arguments." Department of Homeland Security v. Regents of the University of California, 2020.

A pair of related decisions should be included here: one dealing with state immigration policy; the other dealing with immigrants and, again, the Trump administration's dishonesty.

The immigration case, eight years prior to the DACA decision, involved an Arizona law allowing the arrest of any person, without a warrant, who the police suspected was an unauthorized immigrant "removable" from the United States. The Chief Justice joined a 5-3 decision--together with 3 liberals [Justice Kagan did not participate] and Justice Kennedy, who authored the opinion--invalidating the Arizona law for interfering with federal immigration policy. The remaining Republican appointees [Scalia, Thomas, and Alito] each wrote dissenting opinions emphasizing states' rights and denying any conflict with federal law. Arizona v. U.S., 2012.

The Citizenship Question--and Dishonesty Before the Court.  The other case related to the DACA decision was the one last year involving the Trump administration's attempt to insert a citizenship question on census forms. The Chief Justice's vote was decisive in thwarting this transparent attempt to undercount the population of states such as New York and California--home to large numbers of immigrants who would be discouraged from completing such a form.
In his 5-4 majority opinion, Roberts, joined by the Court's 4 liberals--and again denounced by the other Republican appointees [Thomas, Alito, Gorsuch, and Kavanaugh]--blocked this initiative of the administration, just as he did the attempted repeal of DACA, because the administration's beneficent rationale for doing so was a lie. That's my word, not his. But,  his words were no less pointed.
As Roberts himself put it, there was "a significant mismatch between the decision the Secretary [of Commerce] made and the rationale he provided." For emphasis, the Chief Justice repeated that "the evidence tells a story that does not match the explanation the Secretary gave." And just in case any doubt remained, he said the same thing a third way: the "rationale—the sole stated reason—seems to have been contrived."
Roberts concluded by leaving no doubt about his contempt for the administration's dishonesty. "We are presented," he wrote, "with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process." And therefore, the Court--meaning at least the Chief Justice with the 4 liberals--"cannot ignore the disconnect between the decision made and the explanation given." Department of Commerce v. New York, 2019.

Ok, let's start with those cases. Only a few, but major and very revealing.

We'll continue our look at the Chief Justice's and his Court's "somewhat less than right-wing" record next time with LGBTQ rights, search and seizure, the death penalty, and then a few other issues.