There have been times this term when Chief Justice John Roberts looked worn, grayer, even weary. Now we know why.
Roberts, the institutionalist, was straining to find ways that would pull the court back just enough to the center, to avoid the sudden and sustained public backlash that followed last term’s cascade of ultra conservative rulings, including most of all, the reversal of Roe v. Wade–a decision that he did not join.
At this time last year, court observers were saying that the chief justice had lost control of his own conservative majority. The five other conservatives, including three Trump appointees, didn’t need him; they could–and did in the abortion case–prevail without him, producing results that were the most conservative in 90 years. The court, in fact, was a conservative juggernaut that produced one sweeping decision after another.
And the public noticed. Big time. Public opinion polls showed the court’s approval plummeting.
Adding to the court’s woes this term were more conflict-of-interest allegations, this time about undisclosed luxury travel paid for by billionaire GOP megadonors for two of the justices, Clarence Thomas and Samuel Alito.
This term, while much the same as last, was in other ways quite different. It was still the most conservative court in generations. The conservative super-majority, led by Roberts, struck down nearly a half century of precedent, invalidating race-conscious affirmative action programs in college admission; it gutted much of the Clean Water Act; it threw out the Biden student loan program; and invoking the First Amendment guarantee of free expression, the court carved out a major exception to anti-discrimination laws that until last week, required businesses to provide their products and services to all comers, regardless of race, gender, ethnicity, or, in 30 states, sexual orientation.
For the first time since the dawn of the modern civil rights era 60 years ago, the court decreed that public accommodations laws do not have to accommodate all customers–a decision that directly contradicts prior rulings, and leaves the future uncertain.
But in other cases where the court had seemed determined to wreak more havoc, it stepped back from the brink. It rejected the most extreme version of the independent state legislature theory, which argued that state legislatures could draw congressional district lines and make other state rules for elections free from judicial review or other constraints; it upheld the Biden administration’s ability to set immigration priorities; it rejected an invitation to invalidate the Indian Child Welfare Act.
And most surprisingly of all, instead of killing off the last meaningful part of the landmark 1965 Voting Right Act, it left it intact, albeit by the narrowest of majorities. Joined by fellow conservative Brett Kavanaugh and the court’s three liberals, Roberts, who previously led the charge against the voting law, this time wrote the 5-to-4 opinion declaring that the Alabama legislature could not dilute the voting power of African American voters by drawing congressional district lines to ensure that only 1 out of 7 districts would be able to elect a black member of Congress. Given that 1 out of 4 voters in Alabama is African American, Roberts said that the act requires two districts where Black voters can prevail, two districts that he said could be easily drawn, using the traditional tools of creating compact districts with shared interests.
Roberts’ grip on the court
In all of these major decisions, Roberts kept a firm grip on the reins of the court. Perhaps he rued his decision last term to assign the writing of the court’s major gun-control case to Justice Clarence Thomas. The resulting opinion was so broad and so hostile to gun regulation that it left state and federal legislators gasping, and unsure what they could do to deal with the dramatic increase in gun violence across the country in urban, rural and suburban areas. But having assigned the opinion to Thomas, Roberts may have felt he couldn’t very well then dissent from it.
This term, in contrast, he assigned himself four of the seven most important opinions, including affirmative action, and he won some more nuanced conservative outcomes with the aid of Justice Kavanaugh or Justice Amy Coney Barrett, or both.
Much of this consensus, however, was the result of skilled ambiguity. In the Indian Child Welfare Act case, he assigned the opinion to Barrett, who wrote the 7-to-2 decision upholding most of the law but importantly left for another day the sticky question of whether the act’s preferences for tribal members in adoptions and foster care is an unconstitutional racial classification.
Similarly, in the independent state legislature case, Roberts worked hard to write an opinion supported by an ideologically cross-cutting supermajority–three conservatives and three liberals. The price of getting that consensus: ambiguity.
While Roberts’ opinion rejected the notion that state legislatures are essentially free to do whatever they want, the chief justice wrote that state courts do not have “free rein” either. They “may not transgress the ordinary bounds of judicial review,” he wrote, leaving undecided what the standard is for judging when a state court has gone too far in interpreting state law.
By leaving that question unanswered, though, the court majority also may have created the potential for significant mischief in the 2024 election.
A less conservative court term–with exceptions
Looking at the term overall, the outcomes were not as overwhelmingly conservative as last year. The court looked before it leaped, and in fact, the court’s conservatives, if not divided on outcomes, were often divided on their rationales. That gave the court’s liberals the ability to find ways to win a few more cases and to play an important role in the independent state legislature case.
Indeed, the court’s three liberals were on the winning side in more cases than the court’s two most conservative justices, Thomas and Alito.
But not on affirmative action. Not on the big environmental case, eviscerating the Clean Water Act. Not the student loan case. And not when the court allowed businesses owners to turn away same-sex customers whose wedding conveys a message they object to on religious grounds .
If the 2021-22 term was a painfully difficult one for the court, punctuated by the leak of the abortion decision, this one was still arduous. Some of the court’s clashes could be papered over in public last year because the court was still officially closed to the public, so the justices did not read summaries of the majority opinions from the bench and the dissenters, not incidentally, could not read dissents from the bench to underline their profound disagreement.
There is little doubt that the court could have followed its usual practice of bench announcements; while the building was closed to the public, it was open to the press to observe oral arguments in the court chamber when the justices returned to work last year. But when it came time to announce opinions, the court simply abandoned the practice of oral announcements.
That meant that when the court reversed Roe v. Wade, the voice of dissent was silent in the courtroom.
Vocal dissent from the court’s liberals
No more this term. For the first time since 2019 the dissenters could be heard, not just read. And their voice was loud and clear. In the last tumultuous week, Justice Sonia Sotomayor dissented from the bench twice–in the affirmative action and the public accommodations case– in one case reading for a full 20 minutes, and in the other, almost as long. And Justice Elena Kagan dissented from the bench in the student loan case.
Tempers frayed, and Roberts’ last majority opinion, in the student loan case, ended with a veiled message for the public, and his colleagues, followed by a tart rejoinder from Kagan.
“It has become a disturbing feature of some recent dissenting opinions to criticize the opinions with which they disagree as going beyond the proper role of the judiciary,” the chief justice wrote. “Reasonable minds may disagree…in fact three do.” But, he added, “Do not mistake these heartfelt disagreements for disparagement. It is important that the public not be misled,” as “any such misperception would be harmful to this institution and our country.”
Kagan shot back: “I do not at all disparage those who disagree and there is surely nothing personal in the dispute here. But justices throughout history have raised the alarms when the court has overreached… It would have been ‘disturbing’ and indeed damaging if they had not.”
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