Chief Justice Roberts Cements Himself as the Supreme Court’s New Swing Vote

When Justice Anthony Kennedy retired in June 2018, the Supreme Court lost its swing justice, the justice in the court’s “middle” who controlled the outcome in its most contested cases. This year, Chief Justice John Roberts cemented his position as the new heir apparent to this title. But like Kennedy before him, this shift has moved the court to the right in doing so.

Amid the coronavirus pandemic, the court this year decided 53 cases with written opinions, the lowest number of cases since 1862 (in the middle of the Civil War). Of those 53 cases, Chief Justice Roberts was in the majority for 97 percent of the cases, the highest percentage for a chief justice since 1949. The significance of this astounding number is undeniable. What it means is that pretty much whatever the chief wanted, the court did.

The story of Chief Justice Roberts’ remarkable year doesn’t end there. On top of dominating the court’s decisions, he also presided over President Trump’s impeachment trial in the winter (remember that from pre-coronavirus days?). Needless to say, it was a historic year for the chief.

The chief’s power was evident in some of the court’s most high-profile cases. The most attention-grabbing ones were when he thwarted the president and/or voted with the liberal justices. For instance, he authored two opinions that rejected the president’s claim that he would never have to produce his tax returns, whether to Congress or the Manhattan District Attorney; he authored another opinion that rejected President Trump’s attempt to end the Obama-era Dreamer program; he joined five other justices (the four liberals and Justice Neil Gorsuch) in ruling that employment discrimination based on sexual orientation and gender identity is against federal law; and he joined the four liberal Justices to strike down a harsh abortion restriction in Louisiana that would have shut down all but one clinic in the state.

These liberal decisions created an impression that maybe the Supreme Court isn’t as conservative as many thought it would be after Kennedy retired and was replaced by Brett Kavanaugh. And there’s definitely some truth to that. Of the nine Supreme Court justices, the one who dissented most this year was Clarence Thomas, the court’s most steadfastly conservative justice. Justice Thomas dissented 45 percent of the time in contested (non-unanimous) cases. Tied for second on this list was the court’s other extremely conservative justice, Samuel Alito (who dissented 42 percent of the time in contested cases, as did liberal jurist Sonia Sotomayor). When the court’s two most conservative justices are dissenting the most, that means the court is not as conservative as it could be.

That being said, Chief Justice Roberts reigns over an undoubtedly conservative court. Each of the liberal decisions noted above was tempered in a way that a more liberal court (or even a more centrist one) might not have. The two decisions about the president’s tax returns did not order them to be turned over but rather sent the cases back to lower courts to review (and delay) the matter further; the Dreamer case gave the president a road map on how to repeal the program properly; the employment discrimination case said that religious employers might be able to discriminate against LGBTQ people; and the chief’s separate opinion in the abortion case indicated that he would be amenable to states passing other abortion restrictions in the future. Each of these cases had a liberal outcome, but written in a conservative fashion.

But more important, the court also issued many conservative decisions that have vast importance and show a distinct rightward shift on many issues. Those included a case that exempted religious employers from following federal anti-discrimination laws; another case that allowed employers with religious or moral objections to refuse to cover contraception in their health care plans; a case that requires states that fund private schools to include religious private schools as well; a case that struck down the leadership structure of the Consumer Financial Protection Bureau (CFPB); and multiple cases restricting the rights of immigrants in removal proceedings. In fact, in the court’s 12 cases that had a political bent and were decided by a 5-4 vote, the conservative position won nine times.

This conservative bent with mixed results is apparent in the chief’s rulings about President Trump specifically and the president generally. The chief wrote the majority opinion in four major cases about presidential power: the two tax cases, the Dreamer case, and the CFPB case. While rejecting the idea that the president is above the law (the position put forward by President Trump), the chief’s opinions for the court gave the president wide latitude to control the executive branch on his own and to force other parts of federal and state government to recognize his importance.

This isn’t the all-out grant of power to the president that the court’s most conservative justices wanted, but these opinions are also not a clear check on presidential power. The chief’s hands-off approach in the Senate’s impeachment trial, where Republicans were hellbent on acquitting Trump, is further evidence that he doesn’t want to be too aggressive in thwarting the president.

In other words, ignore the headlines saying that Chief Justice Roberts has turned into a Trump-hating liberal and that everyone was wrong that this would be a conservative Supreme Court. Yes, the chief rebuked the president in some key cases this year and sided with the court’s liberals on a few important matters, but with Chief Justice Roberts firmly controlling the court now, it has tilted ever more conservative.