Activist or Restrained, the Current Court’s Movement is Often Directed by the Chief

At the helm of the Senate impeachment trial, Chief Justice Roberts is engaged in politics in a manner distinct from any other role he has or will play on the Supreme Court.  At the impeachment trial he presides over the Senate, mainly ruling on procedural issues, but has also shown a willingness to exert control of the proceedings when he feels necessary.  In this political thicket, the Chief Justice is working within a checks and balances framework that truly entangles the three branches of government.  This type of entanglement between branches is deliberate but also divergent from what is often expected of Supreme Court Justices. During their tenures on the Court, the justices are expected to stay out of politics.  While studies dating back to the 1950’s show that the Court does not really avoid politics at all, there are Court doctrines created to keep the Court out of politics and to ensure the justices decide actual “cases or controversies” as Article III of the Constitution designs.

The Court traditionally follows a set of rules under justiciability doctrines so that the justices are focused on actual controversies that do not pertain to “political questions,” which are not the province on the Court (the Court’s decision in Baker v. Carr (1962) elaborates on the political question doctrine).  The manner in which the justices apply these principles is not always intuitive though as the justices sometimes mention them in order to explain why they are not relevant. Other times the Court looks to these principles in an attempt to clarify when they apply.  In Baker v. Carr for instance, the Court cites Coleman v. Miller (1939) for the proposition that, “In determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.”

The Court has applied these principles in cases as recent as last term’s Rucho v. Common Cause where Chief Justice Roberts wrote for the majority,

“[e]xcessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible with democratic principles,” Arizona State Legislature, 576 U. S., at ___ (slip op., at 1), does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”

The Court, however, has been criticized by the left and the right in recent years for taking on cases that could be decided by the political branches of the federal government. These criticisms may increase as in the realm of politics the Court plans to hear a case this term that examines the voting rules for members of the Electoral College.  Suffice it to say, the line between justiciable questions and those beyond the province of the Court is not crystal clear.

Nonetheless, the Court regularly brings up rules of justiciability in both oral argument and in its opinions. Sometimes as was the case in Rucho v. Common Cause, the justices eschew decisions on the merits favoring a more restrained approach, while oftentimes the justices explain why these doctrines are not sufficiently relevant to impede the justices from ruling on the merits. This post examines instances where the justices have discussed aspects of justiciability including mootness, ripeness, standing, political questions, and justiciability generally between the 2017 and current Supreme Court Terms.

These doctrinal principles arose in 51 cases since the beginning of the 2017 Term. The following chart splits the cases depending on whether the principles arose in the opinion, oral argument, both, or in an oral argument for a case yet to be decided.


Most often these references occurred in both oral argument in at least one opinion in a case, but in many instances the reference came up in either oral argument or in an opinion but not in both. This means that justiciability might have been an issue resolved at oral argument or an issue that was missed at oral argument but that came to light before the decision was released.

Oral Arguments

Looking first at oral arguments, we can see several trends when the justices’ questions are broken down by case and area of justiciability.


Standing and mootness questions were most prevalent, followed by questions related to justiciability and ripeness, and lastly those related to political questions. Mootness came up most often (six times) in both New York State Rifle & Pistol Association Inc. v. City of New York, New York and in United States v. Sanchez Gomez. Standing came up most in arguments for Frank v. Gaos.  Discussion of the political question doctrine only arose in the arguments in Jesner v. Arab Bank and Rucho v. Common Cause.

The next figure breaks the justices down by the number of oral arguments where they mentioned at least one of these justiciability concerns.


Justice Sotomayor was the only justice to raise at least four of these doctrines in oral argument. She also raised these doctrines the most times cumulatively as she brought these up in 15 oral arguments for this period.  Justice Gorsuch brought up these terms the next most often at eight times followed by Alito with seven such references at oral argument.  Justices Kavanaugh and his predecessor on the Court Justice Kennedy both raised these doctrines the fewest number of times with two apiece.


When we look to the Court’s opinions though we see a very different trend for the justices.


Chief Justice Roberts raised issues of justiciability far more than any other justice in majority opinions with eight such opinions. This is followed by five per-curiam (unsigned) opinions and Justice Alito who authored three majority opinions referencing these issues or concerns.  Chief Justice Roberts and Justice Thomas authored nine opinions each referencing justiciability doctrines, yet the breakdown of these opinions was quite different. Roberts authored eight majority opinions and one dissent that discussed these doctrines while Justice Thomas authored only two majority opinions along with two dissents and five concurrences that discussed one or more of these doctrines.

When we look at the opinions that reference justiciability doctrines, we see that they mostly arise in discussions within majority opinions and are raised less frequently in the Court’s separate opinions. The following figure counts the number of opinions where at least one of these doctrines were discussed (not the number of times these doctrines were mentioned within each opinion.


The doctrines were brought up in two opinions in the same case nine times. Each of these instances included a majority and one separate opinion. They came up once in 22 decisions. The 22 opinions include 18 majority opinions, two dissents, and two concurrences. These can be added to the nine other majority opinions for a total of 27 majority opinions, three other concurrences for a total of five, and six other dissents for a total of eight.

The number of times these terms came up in this set of opinions differed greatly. There were detailed discussions of these doctrines in a small set of cases. The six decisions where these terms were discussed the most are covered in the following figure. [Please note that the cases in this figure are based on total references across the decision even though the figure is further broken down by opinion author.]


Justice Gorsuch’s concurrence in American Legion v. American Humanist Association which mainly hinged on standing referenced at least one of these terms the most times with 35 references. This is followed by Roberts opinion in Sanchez Gomez with 26 (Justices Kagan’s and Justice Thomas’ concurrences in Gill v. Whitford cumulatively reference these doctrines 27 times).

Chief Justice Roberts is in a unique space in this graph of the most justiciability references.  He not only authored more opinions in this figure than any other justice with four, but he is also the only justice to author a majority opinion in this figure.

Chief Justice Roberts plays a unique role in helping direct the Court to decide certain cases and avoid ruling in others. Even though he does not discuss these principles noticeably more frequently than the other justices in oral argument, he clearly is the leading justice to discuss these concerns in majority opinions both in terms of total opinions where these doctrines arise and in terms of majority opinions where these doctrines are discussed the most.  Roberts has carved out this role for himself that is exemplified by his majority opinion in Rucho v. Common Cause. This role is sometimes of a restrained justice while other times of a justice more aggressive in willingness to render a decision even if a justiciability concern was brought to the Court’s attention.  This decision making style may be related to Roberts role as Chief Justice, to his concern for the Supreme Court as an institution, or may be based on Roberts own strategic preferences on the Court. Whatever the impetus though, Roberts involvement in this array of cases clearly sets him apart from the rest of the justices on the Court.

On Twitter: @AdamSFeldman

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