In 2009, The New Yorker’s Jeffrey Toobin wrote that Chief Justice John Roberts, more than any of his colleagues, had “served the interests, and reflected the values, of the contemporary Republican Party.”
My, how things change.
More than a decade after he was first appointed, Roberts does not appear to be the justice he was first made out to be. That could prove pivotal in the next few years, as any of several justices may retire. We could soon see a Roberts Court in more ways than one: with him as both chief justice and swing justice, sitting at the ideological center of the bench. But what kind of court would that be? It’s relatively early in Roberts’s Supreme Court career, but he is beginning to fit the historical pattern, at least quantitatively, of an ideological defector.
The case for a liberal John Roberts starts with his 2012 decision that determined the fate of the Affordable Care Act. The chief justice was widely expected to vote to kill the law — the crown jewel of the Democratic president whom he’d sworn into office three years earlier. Instead, he performed some contorted judicial yoga, declaring that the law’s individual mandate was a constitutionally allowed tax, siding with the liberal bloc and saving Obamacare.
Ever since that decision, the right has been concerned. Just this summer, the conservative news site The Daily Caller noted that Roberts “sided with the Supreme Court’s liberal bloc in two racially-tinged cases this term, breaking with his conservative colleagues in favor of housing-rights activists and a black death row inmate.” In 2015, the conservative National Review described the concern colorfully, and geographically: “John Roberts and Anthony Kennedy will, if the goblins in their heads are sufficiently insistent, ratify whatever Starbucks-customer consensus exists for 80 miles on either side of Interstate 95.”
The concern has even manifested in an adjective that’s been repeatedly applied to Roberts: “wobbly.”
We don’t know for sure what caused Roberts’s leftward shift. Those who talk about the inner workings of the court don’t know, and those who might know don’t talk. None of the many former Roberts clerks I reached out to for insight would talk to me. But we do know there’s been a shift.
To quantify ideology, I’ll use Martin-Quinn scores, a prominent measure created by two political scientists that use justices’ actual votes to place them quantitatively on a left-right spectrum, like DW-NOMINATE scores do for legislators.In 2007, Martin, Quinn and two other coauthors found that, “of the twenty-six Justices who served on the Court for ten or more terms since 1937, all but four exhibit ideological drift over the course of their tenures. Twelve moved to the left, seven to the right, and three in more exotic ways.”
‘>5 For context, let’s take a look at one of Roberts’s colleagues.
Alito was confirmed to the court four months after Roberts. Both were nominated by George W. Bush and confirmed by a Republican-controlled Senate. Both were federal circuit judges before joining the Supreme Court. Roberts was an editor for the Harvard Law Review and Alito was an editor for the Yale Law Journal. And in their first two terms on the bench, both had nearly identical ideologies.
But beginning around 2007, Roberts and Alito diverged. Roberts now has a Martin-Quinn score more liberal than Kennedy’s score was five years ago, and more liberal too than that of Souter — a “defector” — at certain points in his career. Alito’s score, meanwhile, is about the same as Justice Antonin Scalia’s was when Scalia died last year.
And so we return to the question of why Roberts is drifting to the left. Kevin Quinn, a political scientist at the University of Michigan and co-developer of the Martin-Quinn scores, thinks Roberts’s shift may have something to do with his status as chief justice. “I think it is probably reasonable to assume that at least some of that movement was more a reflection of the institutional realities of being chief than a genuine change in his view of the law.”
Quinn said that former Chief Justice William Rehnquist, rather than Blackmun or Souter, might be the best point of comparison. Roberts clerked for Rehnquist in the early 1980s and took over his seat on the bench after Rehnquist died in 2005. Visually, Roberts’s ideological path is a remarkably fitting continuation of Rehnquist’s.
The chief justice, as opposed to the eight associate justices, is afforded certain special powers. One of these is critical. After the justices hear arguments in a case, they sit in a closed-door meeting called a conference where they cast their initial votes. If the chief is in the majority, he assigns the justice who will write the court’s opinion for that case. The theory goes that this protocol might give Roberts incentive to side with the liberals and vote against his truly held ideology so that he can assign himself the opinion, or assign it to another conservative justice in the majority. That way, the court’s opinion could be crafted in a way that’s more palatable to the chief justice. Strategic moves like these would shift Roberts’s Martin-Quinn score to the left but have no major impact on the actual decisions of the court.
There is evidence, however, that this isn’t Roberts’s game.