Despite what you may have heard, the chief justice of the United States is no secret liberal. Yes, he voted with his more liberal colleagues in several high-profile cases this term on abortion, DACA, and equality for LGBTQ individuals. But he did not suddenly change his views on any of those subjects.
Instead, the cases that made their way to the Supreme Court changed. Conservative litigators, the Trump administration, and the increasingly conservative lower federal courts have been emboldened by President Donald Trump’s election and the accompanying change in the court’s personnel. They all tried to shift the law in significant ways. In several cases, they succeeded, but in others, the chief justice turned down their requests. So even though it might appear that those cases gave progressives a win, all the chief justice really did was reject some efforts to change the law in more conservative ways, while preserving other opportunities to do so.
Let’s consider the several major cases where John Roberts broke ranks with his fellow conservatives and joined his more liberal colleagues to form majorities. In doing so, he stopped Trump’s initial attempt to invalidate the DACA program, and his vote invalidated Louisiana’s restrictive abortion law that could have closed two of the three clinics in the state. In another major case, Roberts voted with his more liberal colleagues and Justice Neil Gorsuch to hold that existing nondiscrimination laws prevent employers from firing workers merely because of their sexual orientation or gender.
At first blush, these cases seem like major progressive victories, and in some ways they are. The decisions warded off a massive upheaval for the 700,000 Dreamers who would have been at risk of deportation, the thousands of women who rely on abortions each year in Louisiana, and the many LGBTQ individuals whose jobs would have been at risk.
But the decisions say less about the chief justice’s progressive bona fides than they do about the arguments that were being made on the other side. In all of these cases, conservative litigators (including the Trump administration) or conservative courts moved too quickly and too sloppily to change the law for the chief justice’s liking.
Take the Louisiana abortion case, which involved a law that required all abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions. Four years ago, the Supreme Court, with Justice Anthony Kennedy still on it, invalidated that same statute when Texas enacted it. But this year, the states and federal government were tempted to ask for a do-over; so too was the conservative court of appeals that upheld the state law, the Supreme Court decision to the contrary notwithstanding. And it was the court of appeals decision, together with Louisiana’s continued defense of its law, that forced the issue onto the court’s docket.
The chief justice’s vote to invalidate Louisiana’s law should not be read as a major progressive victory. Instead, it merely preserved the status quo, and a prior decision invalidating admitting privileges requirements. What Roberts was rejecting was the lower courts’ brazen willingness to relitigate a recently decided Supreme Court case for no other reason than that there was a change in the court’s personnel.
There was a similar dynamic in the case involving the Trump administration’s effort to rescind the Deferred Action for Childhood Arrivals program. Here too, while the chief justice joined his more liberal colleagues for a progressive result, his vote simply rejected a bold, conservative move to reshape the law. The Trump administration had rescinded DACA on the ground that the program was illegal. The attorney general’s memorandum to that effect cited a federal court of appeals and Supreme Court decision for the proposition that DACA was unconstitutional.
One problem with the Trump administration’s argument is that neither court had said anything of the sort. The court of appeals had not decided whether DACA was unconstitutional, and the Supreme Court had never before issued a decision in the case.
But not only was the administration’s argument sloppy, it also would have dramatically changed the law. Deferred action on immigration status, which is a kind of relief from removal, has been around since at least the 1960s, when John Lennon of the Beatles was one of its beneficiaries. Deferred action recipients have long been able to legally work in the United States; Republican President Ronald Reagan’s administration authorized them to do so by regulation. The Trump administration’s argument would have swept away long-standing practices on the basis of a memo riddled with errors. That was too much for the chief justice, whose vote allowed deferred action to continue, at least for the time being.
The Title VII cases, about workplace discrimination against LGBTQ individuals, tell a similar story. Here too, the Trump administration, together with other conservative litigators, pushed an argument that ran against the growing consensus of the federal courts of appeals. Two of the three recent court of appeals decisions—the three cases that were decided after the court’s major marriage equality ruling—had determined that Title VII prohibited discrimination on the basis of sexual orientation. Similarly, all of the more recent court of appeals decisions had concluded that Title VII also prohibited discrimination on the basis of gender identity.
The Trump administration and the employers’ arguments to the contrary threatened to destabilize much of existing anti-discrimination law. Both of them pressed the argument that sex discrimination does not include firing an employee based on whether the employee is in an opposite-sex or same-sex relationship. That argument, however, would call into question the settled rule that race discrimination includes a decision to fire an employee based on whether the employee is in an inter-racial or intra-racial relationship. Again, the extraordinary reach of the argument being pushed by the conservative side was too much for the chief justice to stomach.
It is not that the chief justice is unwilling to change the law in conservative ways. This term alone, he joined 5–4 conservative majorities that signaled shifts in conservative directions in areas of law ranging from separation of church and state to religious exemptions from anti-discrimination statutes to presidential power. The point is that he is not always willing to do so, particularly when the conservative efforts to change the law are so brazen, so sudden, and also happen in the lead up to an election year.
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