Roberts' 'swing' shift has wide impact in new term

Marshall H. Tanick, BridgeTower Media Newswires

“Judges are like umpires ... [They] don’t make the rules; they apply them.”
— John Roberts
(Sept. 12, 2005)

 A number of uncertainties confront the U.S. Supreme Court as it gears up to address unresolved issues in the 2021-22 term that began Monday.

One of them, whether the tribunal will conduct its hearings and other business in-person after its past one-and-a-half terms working remotely due to COVID was resolved early in September when Chief Justice John Roberts announced that it would resume in-person proceedings. Although due to “concern for the health and safety of the public and Supreme Court employees” the arguments will be closed to the public, who may be able to hear them live remotely.

Logistics aside, a major unresolved matter is the role to be played by Roberts, the man-in-the-middle between the right and left factions on the tribunal.

The observation famously — and perhaps fatuously — uttered by him during his confirmation hearing in the U.S. Senate 16 years ago may play out during the coming session. But much of his umpiring may be among his fellow justices as with adjudicating cases; rather than being outside the baselines he will be in the midst of the game.

Expressly nominated and approved as a conservative-leaning jurist, he has largely fulfilled that description. But as the composition of the court has changed over the years, so has he, drifting toward the middle between the rather firmly entrenched growing conservative and shrinking liberal wings. Although not as pronounced a centrist as Anthony Kennedy or Sandra Day O’ Connor, his predecessor jurist-in-the middle, the chief justice has evolved or, as some critics may moan, devolved into the closest version of the “swing” vote on the current tribunal.

Roberts has frequently, but not always, played a centrist role in the past couple of years. But now, with five more conservative jurists and only three members of the liberal wing left, whether the chief can maintain that balancing act and retain his strategic position is in question, because even as a “swing” vote he would have to bring over at least one other colleague from the conservative faction to be decisive in the outcome of narrowly decided cases, like the 5-4 splits that have in recent years characterized about one-fifth of the high court’s rulings. If he wishes to do so and how he goes about it may impact the law in general and here in Minnesota, too.

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Pivotal player

Kennedy was, to be sure, the quintessential tie-breaker. While the plurality of the rulings of the U.S. Supreme Court are unanimous, upwards of one-third, a relatively high number, are decided by a single vote. These 5-4 decisions may seem to be increasing, but they are actually relatively stable, usually making up from 15% to 20% of the tribunal’s annual 70-75 case output. Their frequency seemed to be rising because the outcome of so many of the high-profile cases like those involving free speech and religious liberties, gun safety, reproductive rights, LGBT issues, and others are determined by one vote — and in some years the number of single-vote cases has approached the number of unanimous ones.

But there’s no mistaking that Kennedy was an unusually pivotal player in his 30 years on the court, nearly always siding with the conservative wing in business regulation, employment, and criminal law cases, joining with liberals in abortion and gay rights matters and some other “social” issues, and functioning as a wild card on other matters.

The centrality of his role was reflected in the 2006-07 term of the high court. That year was marked by a record number of 24 cases, about a third of the docket, decided by 5-4 splits, and Kennedy remarkably cast the decisive vote in all two dozen of them.

Indeed, his prominence in breaking deadlocks was so pervasive that lawyers arguing cases before the tribunal often tactically pitched their arguments in ways they thought would particularly appeal to him at the expense of giving ground to positions amenable to some of the other jurists. It was commonly felt among Supreme Court practitioners and other savants that winning Kennedy’s vote represented a path to prevailing.

With Kennedy’s departure and replacement by Brett Kavanaugh, Trump’s second appointee following his earlier designation of Neil Gorsuch to replace the deceased Antonio Scalia a year earlier, and then with Amy Coney Barrett added last fall, the Supreme Court unquestionably has moved to the right during the past three years. Yet, this progression goes back decades, even preceding Kennedy’s placement on the bench. This has been reflected most glaringly in marquee cases upholding executive power involving immigration and foreign affairs, along with some lesser matters.

But the chief justice’s move to the middle also has been perceptible, especially in the 2020-21 term, which highlights how his role — and his single vote among the nine jurists —might be decisive in high-profile cases coming before the tribunal this term among the 22 cases currently on the court’s docket and probably about four dozen more to follow.

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‘Swing’ shift

The chief’s shift to become a “swing” justice was foreshadowed at the end of the 2018-19 term in June, when he broke a tie in the bitterly-contested census tussle, Department of Commerce v. New York, 139 S. Ct. 2551 (2019) in which he authored the majority opinion in a 5-4 decision that effectively negated the Trump administration’s attempt to place a citizenship question on the 2020 census form.

His explicit doubting of the candor of the administration’s rationale for seeking to include the inquiry, which opponents regarded as a means of creating a racially skewed undercount of immigrants, was a rebuke to the president’s legal position and political posture as well.

He disappointed conservative backers during the following term, as the jurists undertook their first foray in nearly a decade into the thicket of the Second Amendment right to “keep and bear arms.” The court there, over blistering dissents from the right side of the bench, in New York State Rife & Pistol Assn. v. City of New York, New York, 140 S. Ct. 1525 (2020), refused to rule upon a quirky New York City ordinance barring the transportation of guns by lawful owners in that municipality outside of city limits. Because the city had repealed the law and announced it would not enforce it any longer in the face of a potent Second Amendment challenge, the court deemed the case moot and not susceptible to Supreme Court adjudication, a ruling that incensed gun control detractors and a trio of conservative dissenters hoping for a broad ruling that would solidify recent gains made by Second Amendment advocates and, perhaps, even extend the underpinnings of those cases.

Although the ruling was announced as per curiam, without an identifiable author, the majority decision had the unmistakable judicial fingerprints of the chief justice, who raised the issue of mootness arbitral argument.

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Liberal leaning

The chief showed his occasional liberal leaning in other cases during the past term, the first wholly remote one in court history. Siding with the liberals and bulk of conservatives, he authored the court’s ruling in Fulton v. City of Philadelphia, Pennsylvania, 141 S. Ct. 1868 (2021), upholding the right of a Catholic-based faith agency to refuse to allow same-sex couples to serve as foster parents despite a local law barring such discrimination because same-gender relationships violate the church’s religious beliefs. That narrowly-crafted decision by the chief was greeted with derision by a trio from the court’s conservative wing that agitated for a much stronger ruling wiping out existing limitations on religious claims overriding other legal requirements.

The chief justice did not author but also joined the liberals in rejecting another challenge to Obamacare in California v. Texas, 141 S. Ct. 107 (2021), agreeing that the court should side-step ruling in the lawsuit brought by a number of Republican state attorneys general. The case, the third time the Supreme Court has rejected conservative challenges to that health care program recalled the chief’s pivotal role in authoring the first pro-Obamacare ruling nine years ago, a 5-4 decision, in National Federation of Independent Businesses v. Sebelius, 132 U.S. 2566 (2012), upholding the measure as a legally permissible “tax.”

He’ll have an opportunity to be the middle-man in a number of high-profile cases pending before the court this year. They include the abortion rights case from Mississippi, Dobbs v. Jackson Women’s Health Organization, No. 19-1932, seeking to abrogate the nearly four-decade old U.S. constitutional restrictions on the ability of states to bar abortions under the doctrine constructed by Minnesota jurist Harry Blackmun in Roe v. Wade, 410 U.S. 113 (1973). The outcome could have major effects throughout the country.

The chief has given a hint that he may swing into the maintaining Roe camp on this case, although even if he joins the three staunch liberals, it might not be enough. At the beginning of September, Roberts joined the threesome in dissenting from a per curiam decision declining an emergency request to at least temporarily halt an even more rigorous “heartbeat” law enacted in Texas that effectively bans nearly all abortions in that state under the impractical six-week window in Whole Women’s Health v. Jackson, No. 21A24, (Sept. 1, 2021). He opined that the measure was “unusual” and “unprecedented” because of its rigor and allowing private citizens to sue for a $10,000 bounty on abortion facilitators. But the five-member majority allowed the law to remain in effect, subject to later challenge, because its “complex and novel” issues militated against prompt review.

Another upcoming case that Roberts might have in his sights is a follow-up gun case brought by that same New York Second Amendment advocacy group, New York Rifle & Pistol Assn. v. Corlett, No. 20-843, challenging the Empire State’s license requirement for carrying a firearm outside the home.

In addition to the abortion and gun cases in which the chief’s role may be decisive, there’s also a triumvirate of cases pending before the chief and his colleagues dealing with First Amendment freedom of expression issues. The trio including cases involving wording on signage visible to the public in discipline of an outspoken school board member, and parental school choice are right in the chief’s jurisprudential wheelhouse. He has described himself as being “the most aggressive defender of the First Amendment on the court now,” and his rulings have borne this out, although not always welcomed by liberals or conservatives. He has, during his reign, been in the majority of 95% of the tribunal’s First Amendment rulings, and assigning to himself authorship of nearly a third of them, a mixed bag that has almost always upheld the rights of the claimants, sometimes to the consternation of the respective factions on the court.

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Middle meandering

The meandering toward the middle by Chief Justice Roberts is not totally uncharacteristic or surprising. In his confirmation hearing in 2005, describing his anticipated position in the bench as a neutral “umpire,” he noted his “particular obligation to try to achieve consensus,” a posture that he albeit failed to reach in the following year, with the all-time record of 5-4 split rulings.

However, he also has been viewed as an “institutionalist,” rigorously safeguarding the credibility of the court as an apolitical adjudicative body. His shifting from side-to-side, as a latter day Justice Kennedy or O’Connor before him, would be consistent with that tenet.

It remains to be seen if that characterization ends up fitting the chief justice in the coming term as he steps behind the proverbial home plate to begin 17th year on the Supreme Court, along with his mixture of conservative/liberal colleagues this fall. He had better come equipped with a chest protector and a face mask, not just for COVID protection, to fend off the criticism that is likely to come his way from both sides of the bench and their respective fans as he calls the balls and strikes while doling out what is called justice.

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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.