Chief Justice Roberts, 5-4 Decisions, and the Future of the Supreme Court

Many Americans’ first exposure to Chief Justice John Roberts was in January 2009 when he made a mistake reading the Oath of Office to President Obama at the inauguration ceremony. Before then, he was a somewhat “under-the-radar” member of the Court, not as bombastic as Justice Antonin Scalia or iconic as his predecessor, Chief Justice William Rehnquist. When nominated to the Court in 2005 by President Bush, his confirmation hearings were smooth sailing (unlike those of Justice Clarence Thomas) and he came across as a moderate with an impressive amount of judicial acumen.

The gaffe at the inauguration ceremony vaulted Roberts into the spotlight, though, and the Obama administration’s request for a redo of the Oath turned the faux-pas into a bit of D.C. drama. Roberts became a recognizable member of the Court, and around that time he began to show a more conservative side than had previously been seen. During the 2009 term, he sided with fellow conservative Justices Scalia, Thomas, and Samuel Alito and perennial swing voter Justice Anthony Kennedy to decide important cases such as Ricci v. DeStefano (Title VII, civil rights, and job entrance exams), FCC v. Fox (First Amendment television censorship), and 3rd District v. Osborne (criminals paying for DNA testing to exonerate themselves). Critics claimed that he was pushing a conservative agenda and this view of Roberts solidified during the Court’s 2010 term when the divisive Citizens United decision was handed down. Justice Kennedy wrote the majority opinion, but Roberts penned a concurrence discussing the importance of “jucdicial restraint and stare decisis,” two central tenets of conservative judicial philosophy.

During the 2009 cases and Citizens United, more attention was devoted to Justice Kennedy and the 5-4 nature of the cases than Roberts himself. Oftentimes, when a case is decided unanimously, 8-1, or even 7-2, it gets less public notice and the decision’s ramifications do not polarize the public. With 6-3 and especially 5-4 cases, however, it is clear that the justices are voting based on personal judicial philosophies (activism versus originalism) and, usually, contemporary political ideological lines. In any of the aforementioned 2009 cases or Citizens United, four out of the 5 majority votes (Justices Roberts, Scalia, Alito, and Thomas) were the conservatives of the court who are in line with at least some of the Republican Party’s core beliefs. The four minority votes (Justices Ruth Bader Ginsburg, John Paul Stevens, Sonia Sotomayor, and Stephen Breyer) were the court’s liberals who each ascribe to at least some Democratic philosophies. Justice Kennedy’s ideologies are less clear, and as such he has taken up now-retired Justice Sandra Day O’Connor’s mantle as the court’s “swing vote,” meaning he could theoretically side with either the conservatives or liberals during any given case. In each of the four cases previously discussed, Kennedy was the “magic” fifth vote who led to decisions that favored conservative beliefs.

For members of the media and casual followers of the Supreme Court, 5-4 cases are the most enticing because they often provide some sort of drama and their outcomes have sweeping impacts across the country. In the Supreme Court, an institution supposedly untainted by partisanship, the emergence of certain biases in high-profile cases makes for exciting news and lends an air of relevance to what is, at times, the branch of government that has the least to do with the day-to-day lives of Americans. When a case can be explained in terms of Democratic or Republican beliefs, it is easier for the average consumer of media to get involved, which leads to more public attention turned towards the court and, supposedly, more transparency.

From a more scholarly judicial standpoint, however, 5-4 cases can be distressing. The Court’s purpose, as mentioned above, is to be an antipartisan body of jurors that upholds the highest law of the land. Justices are supposed to vote based on judicial philosophy and careful analysis of the Constitution itself, not politically-charged beliefs and party lines. And that’s where Chief Justice Roberts and the 2012 “Obamacare” decision comes in. This past March, as the three cases related to President Obama’s healthcare reforms were debated in the Court, speculation flew as to who would be the swing vote. Nearly every Supreme Court pundit (that I read, at least) thought that it would be Kennedy, one way or the other. Due to his past history, this guess was a safe bet. More concern was expressed over which side the “swing vote,” i.e. Kennedy, would choose; if the liberals “won,” the reforms would be upheld, and if the conservatives “won,” the changes would be struck down and healthcare would head back to square one. On June 28, 2012, as the decision was handed down, it came to light that the swing vote was not Justice Kennedy. Instead, it was Chief Justice John Roberts.

I, for one, was shocked. Justices Ginsburg, Breyer, Sotomayor, and Elena Kagan, aided by surprise swing vote of Chief Justice Roberts, upheld the reforms over the dissents of Justices Scalia, Thomas, Alito, and Kennedy (who seems increasingly less like an O’Connor-esque swing vote the more I look at his voting record). Roberts explained that he had studied the lives of his predecessors and judicial history, and had found that there were many instances of the court behaving “immodestly,” or breaching “judicial decorum,” trying to definitively decide cases once and for all with less-than-successful results. As such, he voted in favor of decorum, and upheld Obamacare. For once, a 5-4 case was not decided based on Republican versus Democratic principles; perhaps a new era of the Supreme Court, one in which the Court’s nonpartisan mission is actually fulfilled, is on the horizon. Roberts will probably continue to vote conservatively on questions of social values, but he has begun to steer the court in the right direction. He has shown that it is possible for the Court’s liberals and conservatives to work together on a decision without regard for their ideological differences, and I hope that this attitude continues in years to come.