So Much For Institutionalism

Rethinking my priors on the Chief Justice

John Roberts being sworn in as Chief Justice in 2005

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I am completely unsurprised by today’s decision to overturn Roe v. Wade. This has been the primary goal of the conservative judicial movement for more than forty years, and it would have been wildly improbable that, with a 6-3 majority, the Supreme Court’s conservatives would have done anything but overturn the decision completely. That’s especially true since President Trump made it clear that he was going to vet nominees to the Supreme Court based on whether they were prepared to overturn the abortion rights landmark.

But the decision itself is more sweeping than, before the draft leaked, anyone necessarily knew it would be, and it comes in the context of a number of other decisions (such as yesterday’s on gun rights) that signal just how aggressive the current Court is ready to be in reshaping American constitutional law. I didn’t fully expect that, and I’m adjusting my priors accordingly—specifically about the role that Chief Justice Roberts might play on a decisively right-wing Court.

Trump’s explicit litmus test on abortion was a sharp break from the past norm according to which you were supposed to pretend that the Court was non-ideological and that all that mattered was a proper judicial temperament and a defensible and mainstream judicial philosophy. It’s a norm that had largely rotted out from the inside by the time Trump knocked it over (the firestorm of conservative outrage over the nomination of Harriet Miers, and the subsequent nomination of Samuel Alito in her place, was a key pre-Trump moment in that regard), but it still had some significance in not locking nominees in to prejudging matters where they might have to sway or might be swayed by their colleagues.

Chief Justice John Roberts in particular was elevated to the Court back when the old norm still had some power, and positioned himself during his confirmation hearings as someone who was a consensus-builder who believed his job was to play umpire rather than participate in the game. He was an advocate of a so-called “new federalism” and of greater deference to the executive branch, either of which may be criticized but both of which ought to have made for less-activist Court. And in his time as Chief Justice, he showed numerous signs of caring as much about husbanding the Court’s credibility and power as about advancing the conservative judicial agenda, refusing to strike down Obamacare on the novel constitutional grounds that persuaded his fellow conservatives, but also holding the Trump administration accountable for following appropriate administrative law procedures. He certainly wasn’t a liberal—not by a long shot—but he seemed like he might be a conservative institutionalist rather than a radical.

I still don’t think he’s a radical. But it looks like that doesn’t matter anymore. Thomas and Alito were always going to anchor the rightmost edge of the Court, but the Trump appointees were all to some degree up for grabs, or at least appeared to be given their histories. None of them were going to be liberals, but it remained to be seen what kind of conservative each would be. For Roberts to exert a moderating influence on the Court, he would have needed to convince all of them at least some of the time that the Court would be stronger, more respected, and its decisions more enduring if Thomas and Alito were writing table-pounding concurrences rather than sweeping decisions.

Instead, Roberts is writing concurrences whining that he’d have preferred to move more judiciously while still upholding the Mississippi abortion law, and joining concurrences clarifying that an apparently sweeping decision on gun rights isn’t quite as sweeping as it appears—which is true enough in terms of its substantive impact, but not in terms of its methodology. And that methodology is really the issue at this point. Roe could have died a death by a thousand cuts, but it could also have been overturned outright on terms that didn’t threaten to undermine a host of other precedents—abortion really is a special case, and it’s not hard to articulate why. Gun rights could have been extended without saying in so many words that the state’s interests are irrelevant to deciding their extent. If Alito and Thomas are setting the terms for how the Court decides cases, though, then even if Roberts wants to exert a moderating influence, he’s not going to find any purchase for doing so.

Roberts is an institutionalist because he recognizes that the power of the Court depends on its perception as a trustworthy arbiter, not a body advancing an ideological agenda. That perception is in sharp decline. If he wants to reverse it, he’ll have to start arguing not only for moderation but for a more moderate judicial philosophy, something that could go toe to toe with Alito and Thomas. And he’ll have to win at least two of his conservative colleagues over to it to create a new center.

It’s a mission that is wildly at variance with Roberts’s own personality. So I suspect what we’re going to see instead is a Court increasingly driven by the predilections of its most passionately-convicted conservative members: Thomas, Alito, and the sometimes-squirrelly Gorsuch. And Roberts, the institutionalist, will watch as yet another American institution gives up on the ambition to represent the people as a whole, and loses their confidence as a result.