- The Washington Times - Sunday, July 5, 2020

Chief Justice John G. Roberts Jr. has been labeled the Supreme Court’s swing vote after siding several times with the liberal wing, but both conservative and liberal court watchers say his judicial moves are all about politics.

Conservatives say Chief Justice Roberts is trying to strike a balance so the high court doesn’t appear too political. Critics say that balancing act is falling short and is resulting in an inconsistent record that appears to be more political than rooted in a particular jurisprudence.

“Roberts seems to be swinging based much more on strategic considerations, and a lot of it really has to do with how much blowback he thinks he and the court will get,” said Curt Levey, president of the conservative Committee for Justice. “He is protecting the reputation of the Roberts Court. He is protecting his own reputation.”

Liberals still view the chief justice as a staunch conservative, unlike Justice Anthony M. Kennedy, the court’s venerable swing vote for decades until his retirement in 2018.

Justice Kennedy, although a Republican appointee, was known to side with the Democratic-appointed justices on cases related to civil rights, abortion and LGBTQ issues. With Justice Roberts, there doesn’t appear to be a line of legal issues where he will reliably join the liberal wing.



Liberals haven’t warmed to the chief justice and don’t consider him a reliable swing vote either, despite Justice Roberts‘ decisions that gave them key wins on abortion and gay rights.

“Roberts is only the swing vote because of how extreme the other four Republican-appointed justices are,” said Dan Goldberg, legal director for the liberal Alliance for Justice.

Mr. Goldberg said he was shocked that the ruling last week that struck down a Louisiana law that threatened to shutter abortion clinics wasn’t 9-0. He said the court shouldn’t hang on 5-4 decisions in major cases over constitutional rights.

“What the Supreme Court just over the last week has demonstrated is how critical the court’s decisions are and how many of our rights and privileges are in many cases hanging by a thread,” he said.

Liberal activists say Chief Justice Roberts‘ concurring opinion with Democratic-appointed justices on the abortion case last week, in which he wrote separately from the liberal wing, only invited more cases restricting abortion rather than signaling that he would strike down any challenge to Roe v. Wade.

“He walks a tightrope in every single case. That is where he wants to court to be,” said Josh Blackman, a professor at South Texas College of Law.

As he tries to toe the line, Justice Roberts tends to author narrow opinions that apply only to the parties before the court, making his middle-of-the-road rulings difficult to use as precedent and uniformity.

Chief Justice Roberts gave the latest example of his stunning reversals last week in the case of June Medical Services v Russo. The court issued a 5-4 ruling saying a requirement for doctors performing abortions to have admitting privileges at nearby hospitals placed an undue burden on abortion access.

The law at issue mirrored one struck down in Texas four years ago that said abortion providers must have credentials and access to a hospital within 30 miles of the site where the abortion procedure is taking place.

The chief justice joined the liberal wing of the court to strike down the Louisiana law but four years earlier voted to uphold the Texas law. In the 2016 case, he joined a dissent authored by Justice Samuel A. Alito Jr. that argued states have an interest in protecting the health of women in cases of medical emergencies.

Writing his separate opinion in the Louisiana case, Chief Justice Roberts said his decision was based on stare decisis, a legal doctrine requiring judges to issue the same ruling on a case if it is identical to a previous case.

“The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore, Louisiana’s law cannot stand under our precedents,” Chief Justice Roberts wrote.

Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the libertarian Cato Institute, said what was odd was that Chief Justice Roberts voted to overturn precedent in other terms, including cases with 30- to 40-year-old precedents.

Mr. Shapiro pointed to Janus v. American Federation of State, County, and Municipal Employees, which struck down mandatory union dues as a violation of the First Amendment. The ruling overturned a case from 1977 that held the opposite view.

“It’s Roberts being strategic,” said Mr. Shapiro, noting that the chief justice doesn’t want the court to move too much, too quickly to the right.

Mr. Levey said the chief justice tends to side with the conservative wing of the court in lower-profile cases. But when it came to cases this term to restrict abortion, LGBTQ rights and protection for Dreamers, the chief justice likely feared major protests at the high court.

“People would say he is trying to protect the legacy of the court. But I would ask: Why does protecting the legacy of the court mean ruling or siding with the liberals on the most controversial issues?” Mr. Levey said.

“I just don’t think he has a lot of courage when it comes to these highly politically charged issues,” he added.

Adam Feldman, founder of the Empirical SCOTUS blog, noted that the chief justice sided seven more times with the conservative wing of the bench than the liberal wing of the court in 5-4 rulings.

“I doubt we will ever see Roberts side with the liberals more often than he does with the conservatives in 5-4 decisions across an entire term,” he told The Washington Times. “Although I suppose weirder things have happened.”

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