180. The Roberts Court Turns Twenty
The Supreme Court is much less popular and much more divisive today than it was when John Roberts was sworn in as the 17th Chief Justice on September 29, 2005. And at least much of that is his fault.
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Once again, the Supreme Court made plenty of news last week—especially in its Monday and Friday orders granting two more emergency applications from the Trump administration, the first clearing the way for President Trump to fire without cause the last Democratic member of the Federal Trade Commission (despite a statute requiring cause); and the second clearing the way for President Trump to decline to spend more than $4 billion in congressionally obligated foreign aid spending. Both rulings came over sharp dissenting opinions from Justice Kagan (who was joined, in each case, by Justices Sotomayor and Jackson).
Although I’m sure he didn’t plan (or want) it this way, those rulings provide an especially fitting lens through which to discuss today’s big Court-related headline—the twentieth anniversary of John Roberts’ swearing-in as Chief Justice of the United States. As the Roberts Court turns twenty (only the fourth time in the Court’s history that a chief justice’s tenure has entered a third decade—see the trivia, below, for the others), the Court finds itself at a crossroads. No one is going to agree on just how much the Court’s reputation has declined over the last two decades, on why that’s happened, or on the (growing) consequences of that decline. But it is objectively true that the Supreme Court is much less popular—and is subject to much more widespread public criticism—today than was true in September 2005. That’s an important reality regardless of the debate over its causes or scope.
History teaches that the tenures of chief justices can be fully assessed only after they’ve ended (Chief Justice Taney, for instance, wrote the majority opinion in Dred Scott in his 21st year on the Court). But if John Roberts’s goal was to leave the Supreme Court stronger and more popular than how he found it (versus, say, enshrining almost every major analytical plank of the conservative legal movement), then it’s impossible to look at recent events and conclude that he’s succeeded—or that he isn’t largely responsible for the position in which the Court finds itself today.
Let’s start with those recent events.
On the Docket
As noted above, the Court’s two biggest headlines last week were Monday’s ruling granting a stay (and granting certiorari “before judgment”) in Trump v. Slaughter and Friday’s ruling granting a stay in Department of State v. AIDS Vaccine Advisory Coalition. I already discussed Slaughter in Thursday’s bonus issue and won’t rehash the highlights here. I’ll just flag that, beyond the question of whether the Court is going to overrule Humphrey’s Executor and effectively invalidate “for cause” removal protections for heads of every agency except the Federal Reserve (a move that seems increasingly likely), the second question the Court agreed to take up in Slaughter somehow has even bigger implications—for it involves what remedies are available to any federal officer or employee who is wrongly removed. Even an exception protecting “for cause” removal for members of the Federal Reserve Board of Governors wouldn’t be worth very much if someone who was unlawfully removed had no effective means of challenging their removal.
As for Friday’s ruling in AVAC, the majority’s brief order suggested that it believes, at least for now, that the government has a good chance of succeeding on its claim that the Impoundment Control Act displaces the availability of any judicial review under the Administrative Procedure Act. That claim is, for lack of a better word, preposterous—for reasons Justice Kagan points out in her dissent (and that I flagged in a post a few weeks back). It says nothing good about where we are that, even when the justices in the majority are providing a modicum of explanation in support of grants of emergency relief to the Trump administration, that explanation is … unpersuasive … at best.
It’s also worth flagging not just these two rulings in the abstract, but where the overall totals stand for the entire October 2024 Term (which ends one week from today). Friday’s grant in Slaughter was the 30th grant of emergency relief since last October (the previous record was 24); and it was the 137th ruling by the full Court on an emergency application (the previous record, set … last year … was 122). Those numbers are quite a story unto themselves.
And there’s every reason to believe that both of those numbers will go up over the next six days. There are still three major pending emergency applications from the Trump administration—Trump v. Cook (about President Trump’s effort to remove Lisa Cook from the Federal Reserve Board of Governors); Trump v. Orr (about the State Department policy requiring individuals to identify themselves on their passport by their biological sex at birth); and Noem v. National TPS Alliance (about temporary protected status for roughly 300,000 Venezuelan migrants). Cook is fully briefed and the response in National TPS Alliance is due today at 4 p.m. (ET), so we may get one or both of those rulings this week. The response in Orr isn’t due until next Monday—so it can start the October 2025 Term’s emergency docket off with a bang.
There are also two new high-profile emergency applications not involving the Trump administration. The first, from Alabama, asks the Court to freeze issuance of the mandate in a capital case in which the Eleventh Circuit had ordered post-conviction habeas relief for Michael Sockwell based upon the prosecution’s unconstitutional exclusion of Black jurors at his trial. On Friday, Justice Thomas issued an “administrative” stay pending the disposition of Alabama’s application—and ordered Sockwell to respond by 4 p.m. (ET) this Friday, October 3.
The second, from Google, asks the Court to freeze issuance of the mandate in its long-running antitrust dispute with “Fortnite”-maker Epic Games—in which the Ninth Circuit had affirmed a district court injunction requiring significant changes to how Google sells and distributes outside apps through its “Play” store. Justice Kagan has called for a response from Epic, also due by 4 p.m. (ET) this Friday. And before that, we also expect the Court to rule on a new emergency application from Florida death-row inmate Victor Tony Jones, who’s seeking to block his execution—currently scheduled for 6 p.m. (ET) tomorrow.
Of course, all of this is happening while the justices are set to meet later today for their “Long Conference”—the first formal gathering of the Court since the justices rose for their summer recess at the end of June, which is supposed to be devoted to, you know, the rest of the Court’s docket. Not so long ago, the Long Conference would have merited detailed coverage all by itself. But as the [whatever-the-heck-we’re-calling-it] docket has come to dominate the Court’s work, its more ordinary operations have increasingly (and, in my view, understandably) receded from public view.
Indeed, the only major new merits docket news is probably Friday’s reporting (which I first saw on CNN) that the Trump administration is seeking plenary review in the Supreme Court in two of the birthright citizenship cases—Barbara (in which a district court in New Hampshire certified a nationwide class action and enjoined enforcement of the policy against the class); and Washington (one of the original cases that already went to the Supreme Court, in which the Ninth Circuit on remand after the June ruling in CASA reaffirmed a universal injunction against the policy on the ground that it was necessary to provide the state plaintiffs with “complete relief”). Somewhat fortuitously, I wrote about both of these cases in far more detail last week, if you’re curious as to their background.
Whereas I’ve seen some commentary suggesting that this move is a sign that the Trump administration now thinks it can win these cases on the merits, my own view is that this is Solicitor General Sauer doing what he promised the justices he would do at the May oral argument—and nothing more. The government isn’t seeking to expedite these cases; and it isn’t seeking emergency relief pending their disposition. It stands to reason that the Court will eventually grant these petitions—and decide the cases during the October 2025 Term. But not as quickly, it seems, as the tariffs case or Slaughter. Make of that what you will; to me, it’s not exactly a sign of confidence from the Department of Justice.
The One First “Long Read”:
Two Decades of the Roberts Court
I first met Chief Justice Roberts very early in his tenure (and, less importantly, mine)—when he came to the University of Miami School of Law for a public talk (and an ABC News interview) in November 2006.1 Roberts seemed to be, in at least some respects, a breath of fresh air. The same nine justices had sat together from Justice Breyer’s 1994 confirmation through Chief Justice Rehnquist’s death in September 2005 (the second-longest period of unbroken continuity in the Court’s history—and the longest since 1823). Here was a much younger, more vibrant, and publicly charming successor—who outwardly committed to working to build more consensus inside the Court, and to leading the Court not just toward moderation, but toward more public visibility (hence sitting down for an hour-long interview on national television). Perhaps the most widely remembered line from his confirmation hearing was his insistence that judges just call balls and strikes. But the more telling quote to me has always been his insistence that, “if it’s not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.”
The ensuing 20 years has featured a Court deciding quite a lot more than necessary—inserting itself into hot-button social issues earlier than necessary (if it was necessary at all); moving an array of previously settled statutory and constitutional understandings sharply to the right; and, over the past decade especially, running roughshod over all kinds of procedural norms that previously served to moderate many of the justices’ more extreme impulses—with its behavior on emergency applications just one of the many examples. (Last Monday’s grant of certiorari “before judgment” in Slaughter was the 23rd time the Court has thus leapfrogged a federal court of appeals since 2019; it hadn’t done it once in the previous 15 years).
It’s tempting to conclude that some of this shift happened despite the best efforts of Chief Justice Roberts, not because of them. This was the same Roberts, for instance, who switched his vote in 2012 to uphold the Affordable Care Act—the centerpiece of President Obama’s domestic agenda. It’s the same Roberts who, as the median vote between Justice Kennedy’s retirement in 2018 and Justice Barrett’s confirmation in 2020, voted against President Trump in a number of significant cases—including the Census case (in which he wrote for the Court and his vote was decisive); the DACA case (ditto); and the two subpoena cases (in which he wrote for both majorities). And it’s the same Roberts who, at least for a time, was most likely to split from the other Republican appointees when it came to abuses of the emergency docket—from COVID cases during the October 2020 Term to the Texas abortion case in September 2021 to the Alabama redistricting cases in February 2022. Indeed, Roberts dissented on the most important issue in Whole Woman’s Health, and concurred only in the judgment in Dobbs; he alone was willing to uphold Mississippi’s 15-week abortion ban, but not to otherwise overrule Roe or Casey.
But a very different Roberts had already made his presence felt by the end of his second term on the Court—when he wrote for the four-justice plurality in Parents Involved in 2007. When Justice Breyer’s oral dissent in that case pointedly complained that “It is not often in the law that so few have quickly changed so much,” he was directly blaming Roberts and Justice Samuel Alito—who replaced Justice Sandra Day O’Connor in the middle of Roberts’s first term—for the Court’s rapid right-turn on desegregation.
Although Justice Scalia’s dissent was more widely quoted, it was Roberts’s four-justice dissent in Boumediene in 2008 that seemed to suggest the government could give perfunctory “hearings” to Guantánamo detainees and not have to provide any other judicial review. It was Roberts’s 2009 opinion for the Court in NAMUDNO that all-but invited the arguments that led to the Court’s 2013 ruling in Shelby County v. Holder—in which Roberts, in an opinion for a 5-4 majority, eviscerated the Voting Rights Act. It was Roberts who wrote, again, for a 5-4 Court in Rucho in 2019—holding that federal courts lack the tools to entertain constitutional challenges to partisan gerrymandering.
And as I wrote at the end of the October 2023 Term, it was Roberts who turned even more conclusively to the right in the Court’s major cases leading up to the 2024 election—foremost among them in his opinion for the Court in Trump v. United States, but also in lots of other major rulings during that term. Folks will continue to debate how much the immunity decision is directly responsible for Trump’s (re-)election; for his behavior since returning to office in January; or both. What can’t be gainsaid is that the Chief Justice was the decisive figure behind the scenes in that case; even though Justice Amy Coney Barrett also sided with Trump, she would have decided the dispute on far narrower grounds than Roberts and the other four Republican appointees.
I’ll leave to others, including Roberts’s incisive biographer, Joan Biskupic, to attempt to resolve the seeming inconsistency in the two tracks of jurisprudence outlined above—and why John Roberts’s votes seem to reflect profound concerns about the Court as an institution in some cases, but not in so many (especially recently) in which that concern has been most squarely presented. The relevant point for present purposes is that, despite the efforts of many headline writers to the contrary, this unquestionably is the “Roberts Court”—and it has been for quite some time. Roberts could move the Court by voting differently in some of these cases; he has chosen not to. Roberts could speak up more about the unprecedented institutional (and physical) threats to the judiciary; save for one cryptic statement about impeachment, he has chosen not to. Roberts could write separately in cases in which he believes he is obliged to grant emergency relief to the Trump administration but doesn’t wish to condone its (public or litigation) behavior; he has chosen not to. It may be unfair to attribute the work of the Supreme Court from 1946 to 1953 to Fred Vinson, or from 1969 to 1986 to Warren Burger; both men were largely unable to exert meaningful influence over the Court or its direction. It is entirely appropriate, in contrast, to hold Roberts responsible for the position in which the Supreme Court finds itself as he begins his third decade in its center seat.
And that position is an increasingly unstable one. Gallup’s polling data shows popular support for the Court at the lowest levels since they started measuring it. That’s more than just a meaningless statistic or an empty talking point, though; a Court without broad public support is a Court that won’t have the same capital to spend on ensuring that a dissatisfied President complies with rulings against him or enforces rulings to which he objects. Put another way, whatever the source of the Court’s mounting unpopularity, the result is to deprive the justices of a growing amount of the soft power on which their most important—and countermajoritarian—decisions have historically depended. And whatever the reasons for this development, it has happened on John Roberts’s watch.
And this leads me to the biggest question I have about John Roberts as we enter his third decade as chief justice and what could well be, by its end, one of the most consequential terms in the Supreme Court’s history: Is it that the Chief Justice doesn’t accept that the Court is losing credibility on a daily basis; that he thinks the Court doesn’t need that credibility in order to fulfill its intended role in our constitutional system; or that he doesn’t care? None of these answers seem consistent with the John Roberts I met in Miami in November 2006. But it’s hard to look at recent events and conclude anything other than that (at least) one of them has to be correct.
SCOTUS Trivia: The Three Chiefs Ahead of Roberts
Even relatively casual Supreme Court-watchers can likely name the two longest-serving Chief Justices—John Marshall, who served for 34 years, 152 days (from 1801–35); and the aforementioned Roger Brooke Taney, who served for 28 years, 198 days (from 1836–64). But today’s trivia is the third-longest-serving Chief Justice, who, I think it’s safe to say, isn’t nearly as well-known.
The answer is Melville Fuller—who served as Chief Justice from 1888 to 1910 (21 years, 269 days). Fuller’s tenure was plenty consequential; Congress began to give the Court control over its docket in 1891; and the Court during Fuller’s tenure handed down a slew of controversial decisions—Pollock (which he wrote, and which led to the Sixteenth Amendment); Plessy (which Brown v. Board of Education famously overruled); Lochner (which the New Deal-era Court would repudiate); and so on. But for various reasons, some of which are lost to history, we tend not to associate Fuller today with the Court of his era to the degree that we associate Marshall and Taney with theirs, or Roberts with his.2
For the record, Roberts would pass Fuller for the third-longest tenure among chief justices if he is still in office as of Saturday, June 26, 2027. He’d pass Taney on Sunday, April 16, 2034. And he’d pass Marshall on Wednesday, February 29, 2040.
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I started my teaching career at “the U” in 2005; I was in the middle of my second (and, as it would turn out, last) year there when the Chief Justice came to campus.
The shortest-tenured chief justice was John Rutledge, who held his recess appointment to the position for only 138 days in 1795 before the Senate rejected his nomination and he resigned. The shortest tenure among Senate-confirmed chief justices was that of Rutledge’s successor, Oliver Ellsworth, who served for four years and 282 days (1796–1800). Right behind Ellsworth is Harlan Fiske Stone, who held the Court’s center seat for only 11 more days between 1941 and 1946—but who had been serving on the Court as an associate justice for more than 16 years at the time of his elevation.
This is the UnAmerican scotus. They DO NOT represent The People.
Did you notice the speech by Justice Thomas this weekend to the effect that the Supreme Court can and should ignore precedent it doesn't like? Not a good sign.
EDIT: The speech was Thursday, https://abcnews.go.com/Politics/justice-clarence-thomas-legal-precedents-gospel/story?id=125967044