The prevailing wisdom both inside and outside legal academia is that Chief Justice John Roberts is first and foremost an institutionalist who cares deeply about his personal legacy and how his Court will be viewed when he finally retires. Supreme Court commentators point to his two (as of last Thursday three) votes to uphold the Affordable Care Act, as well as his decision to abide by the Court’s precedent when he invalidated two abortion laws in June Medical v. Russo last year, as the main support for the notion that the Chief sometimes subsumes his personal preferences for the greater good of Supreme Court legitimacy over time. His extremely narrow opinion for the Court in Fulton v. City of Philadelphia last week in favor of a Catholic social services agency joined in full by the Court's three liberals may well be seen in the same light. Court watchers on both the left and the right seem to share this narrative.
This oft-told tale, however, is mostly fiction. The reality is that the defining feature of Chief Justice Roberts’ jurisprudence is not his alleged institutionalism but his non-judicial hubris.
Across the spectrum of our most contested and controversial constitutional law questions, the Chief has reached out to coerce local, state, and federal government officials to govern according to his personal wishes whether or not positive legal sources supported his preferences. He has voted to dictate important governmental policies in cases ranging from health care to affirmative action to campaign finance reform to voting rights to the separation of church and state to the separation of powers. In all of these areas, as well as many more, the Chief has used catchy sound bites and worn cliches as justifications for ignoring and/or distorting what is supposed to be the stuff of constitutional interpretation: text, history, and prior case law.
I am working on a law review article supporting this thesis with detailed discussions of the Chief's opinions in all of the areas discussed above. For this blog post, however, I will use affirmative action as a representative example of the Chief's hubris, which is timely given the Court is currently considering whether to hear an important case involving Harvard's use of race in its admissions process.
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