Chief Justice John Roberts’ resume is not remarkably unique for a Supreme Court Justice. That is not to say that it is not impressive. There is scant evidence of an imperfection from his Harvard undergrad and law school education, appellate and Supreme Court clerkships, work in the Solicitor General’s Office, big firm law practice, and judgeship in the D.C. Circuit Court of Appeals.
He is, however, a strategist unlike his predecessors – Chief Justices Rehnquist, Burger, and Warren. Chief Justice Rehnquist’s legacy, for instance, will be forever wrapped-up with the Bush v. Gore decision and specifically how he allowed the Justices’ ideological and partisan politics to play into the Court’s jurisprudence in one of its most historic cases. The Roberts’ Court has seen its fair share of 5-4 decisions across ideological lines. Some of its most important decisions with vast ideological implications like Citizens United and Shelby County v. Holder divided the Court strictly along ideological lines.
Justice Roberts’ legacy has, so far, been dictated by his more liberal rulings as well as by his conservative positions. This balancing act has led to fervent criticism from the right. From his deciding vote in National Federation of Independent Business v. Sebelius to his position in Arizona v. United States that helped block Arizona’s immigration law to his decision in King v. Burwell, Chief Justice Roberts has not entirely merged with either ideological bloc on the Court.
As Chief Justice Roberts’ decisions are under scrutiny from the left and the right, why might Roberts the strategist with his often conservative vote have decided to actively aid in the move away from the Court’s contemporary conservative thrust?
From observing Roberts’ decisions both qualitatively and quantitatively there appear to be three, somewhat calculated shifts in his voting patterns. The first took place when Justice Roberts authored the decision in National Federation of Independent Business v. Sebelius. Whether due to prudential considerations in response to the Court’s ruling in Bush v. Gore, or to an enhanced sense of judicial restraint, during the 2011 Term, Chief Justice Roberts let known his willingness to depart from a conservative majority in landmark cases.
Roberts’ penchant for dissenting against liberal majority opinions was still visible during the 2011 Term though. In fact, across his eleven Terms as Chief Justice, Justice Roberts has dissented against liberal decisions more often than against conservative decisions in nine of the Terms. The image below shows the term-by-term breakdown.
The 2011 shift marked a strategic move by Roberts to avoid showcasing politically charged rulings and possibly to preserve his own legacy as well as that of the Court. Roberts still tended to vote along with the right-wing of the Court at this point and the balance of the Court’s rulings were still in the conservative direction.
Roberts strategic voting choices are also evident in his choices of when to dissent. Unlike many of his counterparts on the Court, Roberts tends to vote against the majority only with the support of other Justices. He has never dissented alone in a case and only dissented with one other Justice seven times thus far (twice with Justice Kennedy, twice with Scalia, and once with Alito, Thomas, and Sotomayor). He stakes positions against the majority when he sees the possibility of forming a coalition on the same issue in a different case in the future.
Roberts pattern of voting against the majority in 5-4 split decisions (rather than in cases with fewer dissenting votes) is apparent in the figure below.
In all of his Terms on the Court except for 2006, at least half of Justice Roberts votes against majority opinions were in 5-4 split decisions. This strategic tendency related to his dissenting votes was especially apparent in the 2011 Term (when the Court ruled on National Federation of Independent Business v. Sebelius) where his percentage for this type of dissenting vote was at his highest point of 91%.
Roberts second move was from strategic to frustrated Justice. Likely aware of the Court’s potential shift away from a predominately conservative majority, especially as Justice Kennedy’s votes more often aligned with the liberal Justices than in the past, the 2014 Term marked this shift for Justice Roberts. The Court voted in the liberal direction 58% of the time in the 2014 Term, which was a greater percentage than in any other Term of the Roberts Court. As the Figure below shows, this Term also marks a spike in Justice Roberts overall dissenting votes.
While Chief Justice Roberts generally voted against the Court’s majority in less than 20% of the cases per Term, in 2014 he voted against the majority in the highest percentage of cases for a Term during his tenure on the Court (in 25% of cases per the Supreme Court Database).
In the third shift, probably due at least in part to the death of Justice Scalia, Roberts move appeared to be one of acquiescence. In 2015 Justice Roberts overall percentage of dissenting votes dropped below 10% again. Although Roberts’ conservative leaning were still apparent in some of his tendencies (for instance he dissented with Justice Thomas more often than any other Justice during this Term) his ideological flexibility was most apparent in this Term as well.
Looking back at the second figure Chief Justice Roberts was at his second lowest level for 5-4 dissents as a percentage of his overall dissents in 2015 (50%), indicating less of a concern with dissent coalition building. This was a substantial shift away from this pattern in prior Terms. The most distinct indication of this acquiescence, however is apparent in the first figure above. 2015 was the Term in which Chief Justice Roberts dissented against liberal majority opinions in the fewest percentage of his overall dissents for a Term (29%).
Roberts decision to vote against conservative decisions at a higher rate potentially shows Chief Justice Roberts decision to read the tea leaves regarding the current momentum of the Court. With an ideologically balanced Court and the potential for the confirmation of another Justice nominated by a Democratic President, the balance of the Court may lean in a liberal direction for the first time in decades. With this balance, Chief Justice Roberts would have the decision to dissent more often and solidify his position as conservative Chief, or, rather than establishing a role as an antagonist to the Court’s majority, act as a point of unification. By tactfully voting as he has in the past, with few dissenting votes, especially as the dissenting coalitions shrink, Chief Justice Roberts could bring the conservative and liberal poles of the Court into greater harmony than we have observed in recent years. With the addition of a new Justice hopefully by or during the 2016 Term, we will see if Chief Justice Roberts decides to shift again, this time towards a predominately conservative vote, or to remain more ideologically neutral and to bring cohesion to the Court in a manner not present during the previous years of the Roberts Court.