More than ever, this is John Roberts' Supreme Court

The George W. Bush appointee is leading from the center — and drawing Trump's wrath along the way.
State of the Union
Chief Justice John Roberts walks through Statuary Hall to the House chamber before the start of President Donald Trumps State of the Union address on Feb. 4, 2020.Bill Clark / CQ-Roll Call, Inc via Getty Images file

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By Pete Williams

WASHINGTON — How much is Chief Justice John Roberts now the center of the Supreme Court? Consider this: In the term that ended Thursday, he was in the majority in all but two cases.

"This term firmly established Roberts as not only the Supreme Court's ideological center but also its judicial center. So many decisions followed his perspective on the law," said Tom Goldstein, a Washington lawyer who argues frequently before the court.

Roberts joined fellow conservatives in rulings bolstering religious freedom and presidential power over independent federal agencies. But in the term's headline cases, he cast the deciding votes by joining liberal justices in 5-4 decisions that overturned a state law restricting access to abortion and that blocked the Trump administration from shutting down DACA, which allows young people known as Dreamers to remain in the U.S.

Those rulings and others have infuriated the president and some of his supporters.

The chief justice was in the majority in 97 percent of the court's decisions this term, his highest percentage since he came to the court 15 years ago, according to statistics compiled by Adam Feldman of SCOTUSblog. He dissented only from the court's 6-3 ruling that said the Constitution requires unanimous verdicts in jury trials for serious crimes and from a 5-4 decision declaring that a Native American tribe has some jurisdiction over a large part of eastern Oklahoma.

David Cole, legal director of the ACLU, said Roberts is now the court's most likely swing justice.

"The best explanation for that has to be his institutionalist concern that the court shouldn't decide all the big cases on a partisan party line," with justices appointed by Republican and Democratic presidents voting in opposite ways. "They all have some concern about that, but he's the one that's taken that most to heart."

In other decisions joined by Roberts that pleased liberals and angered conservatives this term, the court rejected President Donald Trump's efforts to defeat subpoenas for his personal financial documents and said existing civil rights laws ban job discrimination based on sexual orientation and gender identity.

But Roberts is not a swing justice in the mold of Anthony Kennedy, who retired in 2018. Kennedy notably wrote the court's gay marriage ruling and voted consistently to trim back the reach of the death penalty. Roberts, by contrast, does not write sweeping opinions that move the law to the left.

"The chief justice is more of an incrementalist than a swing justice," Goldstein said. "He is moving the law to the right, but slowly. And the liberal justices are willing to go along with him, to minimize the damage."

For example, Roberts voted with the liberals to strike down a Louisiana law that could have left the state with a single abortion clinic. But his opinion set out a legal test that could make it easier for future state abortion restrictions to withstand legal attacks.

The DACA ruling — which caused the president to lash out at the court — nonetheless left the door open for the Trump administration to try again to shut the program down. And the rulings on the subpoenas for Trump's taxes and other financial documents sent the cases back to the lower courts, likely delaying any resolutions until after the November election.

President Donald Trump talks with Supreme Court Chief Justice John Roberts as he departs after delivering his State of the Union address to a joint session of the U.S. Congress on Capitol Hill on Jan. 30, 2018.Jonathan Ernst / Reuters file

Irv Gornstein, who runs the Supreme Court Institute at Georgetown University, said the two 7-2 rulings in the Trump taxes and financial records cases were a testament to the skill of Roberts as chief justice.

"He got wide majorities to reject the president's broad claims of immunity in both cases," Gornstein said. "And he got equally wide majorities to reject the view that states and Congress have a blank check to get access to a president's personal information."

Despite the outcomes in some of the highest profile cases, legal scholars said the Roberts court remains a conservative one.

"One hundred percent," said professor Richard Primus at the University of Michigan law school. He called the court's 5-4 ruling giving Trump the power to fire the director of the Consumer Financial Protection board "a big step forward in the conservative attack on the administrative state."

Primus said Roberts has approached the job of chief justice with the goal of keeping the court in the calm eye of a political storm.

"His attitude has been, 'At a time when the volume is turned all the way up on so many things in American government, I'm going to try to move with the volume as low as I can reasonably make it.'"