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, reported the New York Times.
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
He is generally reluctant to overturn decisions or to strike
down federal laws. Thus he often reads precedents narrowly or construes federal
statutes in ways that will avoid constitutional problems. Since he became chief
justice, the Supreme Court has overturned its own precedents and struck down
federal laws at a much lower rate than it did under Chief Justices Earl Warren,
Warren Burger or William Rehnquist.
Where the chief justice concludes a statute is
unconstitutional, his aversion to disruptive decisions leads him toward narrow
remedies, including an aggressive approach to the doctrine of severability,
under which the court excises as little of a law as possible to cure a
constitutional defect.
For instance, after he found that the Affordable Care Act’s
Medicaid expansion was unconstitutionally coercive on state governments
in National Federation of Independent Business v. Sebelius, his
remedy was to make the expansion optional, removing the coercion, while leaving
the rest of the law in place.
These impulses have been on clear display in the chief
justice’s decisions this term. In Seila Law v. Consumer Financial Protection Bureau, for example, he
concluded Congress had unconstitutionally insulated the bureau’s director from
presidential control by barring removal without cause. His decision remedied
this constitutional flaw simply by eliminating the limitation on removal, while
leaving the bureau’s regulations and enforcement actions intact.
This approach, he explained, would minimize the “disruption” of the decision; it
also matches a strikingly similar remedy he ordered in 2010 in Free
Enterprise Fund v. Public Company Accounting Oversight Board (that
case involved a challenge to the constitutionality of the Sarbanes-Oxley Act of
2002, which established the board and sought to reform corporate America after
the Enron and WorldCom accounting scandals). In addition, he made clear this
holding applied only to the handful of agencies with an equivalent structure,
and not to other independent agencies.
Chief Justice Roberts has hewed closely to precedent as
well. In June Medical Services v. Russo, he voted to strike down Louisiana
regulations governing abortion providers because they were virtually identical
to ones in Texas that the court had struck down just four years ago. Although he disagreed with
the court’s earlier decision, he explained that the need for the court to
follow precedent and decide like cases alike required this result.
And in Ramos v. Louisiana, he voted against requiring unanimous jury
verdicts in state courts under the Sixth Amendment, as he believed this would
have required overturning a 1972 precedent, imposing ‘a potentially crushing
burden on the courts and criminal justice systems of those States.’” Notably,
this is the only dissenting vote the chief justice has cast thus far this term.
His aversion to disruption may have been most plain in his
opinion rejecting the Trump administration’s DACA rescission. The
administration has the authority to rescind DACA, Chief Justice Roberts explained, but it failed to account adequately for
the “reliance interests” of those who depended upon the program, including not
just DACA recipients but their families, employers and communities.
Much as in King v.
Burwell, where the chief justice was unwilling to accept an interpretation
of the Affordable Care Act’s text that risked depriving millions of Americans
of subsidized health insurance, he was unwilling to greenlight a sloppy Trump
administration effort that would have put thousands of law-abiding noncitizens
at risk of deportation.
Even where Chief Justice Roberts has been responsible for
disruptive opinions, he appears to have done so reluctantly. Four years before
the Shelby County decision on the Voting Rights Act, he wrote a majority
opinion in Northwest Austin Municipal Utility District No. 1 v. Holder,
adopting an implausible interpretation of the act’s text so as to fend off a
constitutional attack.
Writing for an 8-1 court, he justified stretching the
statute’s text because of “underlying constitutional concerns” about Section
Five (the act’s requiring of certain states to get federal approval of changes
in their election laws) — concerns he likely hoped Congress would fix before
another such challenge reached the court. Congress’s failure to act, the chief
justice would write in Shelby County, left him “no choice” but to reach the underlying
constitutional question. Even if you find the explanation unpersuasive, you can
see the gravitational pull of his minimalist ethic in his approach.
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