Entering a new Supreme Court term, John Roberts is as enigmatic as ever

Next week, John Roberts will gavel in his 20th term as chief justice of the United States. It has been an enigmatic two decades for the man in the center chair of the U.S. Supreme Court. But this October feels different, with the chief justice’s role coming under renewed scrutiny.

A seasoned lawyer before he joined the high court, Chief Justice Roberts has long defied the liberal and conservative labels now routinely attached to members of the judiciary. Over years of growing partisanship and declining trust in U.S. institutions, including the court itself, he has cultivated a reputation as an institutionalist more concerned with the court’s public standing than with any legal philosophy.

But after a term in which he wrote landmark opinions benefiting former President Donald Trump, some court watchers are reevaluating that institutionalist image. Was last term an isolated incident? Or is the chief justice forging a new role for himself on a deeply conservative court?

“He [may have] consciously made a choice to move to the right,” says Aaron Tang, a professor at the University of California, Davis School of Law. Or “the big cases last term happened to involve an issue where he’s extremely conservative.”

“Only time will tell which of these two stories is the true story of the chief,” he adds.

A conservative chief on a conservative court

Chief Justice Roberts has been reliably conservative since he joined the Supreme Court. But around him the court has become increasingly conservative – and aggressive – in recent years.

Since former President Trump cemented a supermajority of six Republican-appointed justices in 2020, the high court has effectuated Republican policy goals including expanding gun rights, weakening the ability of workers to unionize, and overturning decades-old precedents involving affirmative action, abortion rights, and the regulatory power of federal agencies.

Leah Millis/AP/File

Donald Trump greets Chief Justice John Roberts as the then-president arrives to deliver his State of the Union address to a joint session of Congress in Washington, Feb. 4, 2020.

Thanks in part to Chief Justice Roberts, this sprint to the right had, until now, been more of a crawl. Some court watchers now wonder if the chief is leading the charge.

“This has been a conservative court, a Republican court ... but until recently it has not been a MAGA court,” said Michael Waldman, president of the Brennan Center for Justice, during a briefing on the court’s new term.

“The immunity case suggests we may be in new territory,” he added, referring to the court’s July ruling that former President Trump is at least presumptively immune from criminal liability for his official acts.

Over the decades, particularly in high-profile cases, the chief justice has prioritized the court’s institutional legitimacy over his ideological preferences. Sometimes he’s crafted narrow rulings that avoid seismic changes in the law. Sometimes he’s outright abandoned the court’s right wing.

One year, Chief Justice Roberts wrote the opinion upholding the Affordable Care Act, for example. A year later, he wrote the opinion gutting a key section of the Voting Rights Act. While he’s voted to expand gun rights and overturn Roe v. Wade, he’s also voted to uphold the Deferred Action for Childhood Arrivals program and to apply federal antidiscrimination protections to transgender employees.

Four years ago, he supported the court’s decision to dismiss Mr. Trump’s appeals challenging the results of the 2020 election. Years earlier, he had publicly rebuked Mr. Trump for labeling a lower court judge an “Obama judge.”

Last term, however, the chief justice helped hand Mr. Trump a series of legal victories. In Trump v. Anderson, the court unanimously held that Colorado couldn’t remove the former president from its presidential primary ballot for engaging in insurrection. And in the most high-profile ruling of the term, Trump v. United States, Chief Justice Roberts wrote that former presidents are entitled to broad immunity from criminal prosecution for official acts.

But those opinions may not suggest that the already conservative justice is moving even further to the right. Given Chief Justice Roberts’ background as a lawyer in the Ronald Reagan and George H.W. Bush administrations, the opinions aren’t that surprising, legal experts say.

“He’s been wanting to do that for his whole career,” says Carolyn Shapiro, a professor at the Chicago-Kent College of Law, referring to the recent expansion of presidential immunity.

“He has a very deep ideological commitment to” presidential power, she adds. “It’s about an effort to undo things that he thinks were done improperly in the post-Watergate era,” such as U.S. v. Nixon, when the court ruled that Richard Nixon had to turn over the Watergate tapes, effectively guaranteeing his resignation rather than face impeachment.

“I believed Roberts would be a natural leader”

A detailed report from The New York Times earlier this month seems to corroborate that. Quoting sources inside the court, including from the justices’ private memos, the Times detailed how Chief Justice Roberts pushed for a robust interpretation of presidential immunity from the moment the case reached the high court.

The chief justice also reportedly showed no interest in crafting a more moderate opinion that would attract votes from the court’s liberal wing. A similar dynamic played out in the Colorado case, where a unanimous decision on the outcome still prompted dissents from liberal justices critical of the ruling’s breadth.

But the court’s recent influx of right-leaning justices may have put the chief justice in a difficult position when it comes to consensus-building, some legal experts argue.

“His preference is for decisions that are less disruptive,” says Jonathan Adler, a professor at the Case Western Reserve University School of Law. But Chief Justice Roberts also doesn’t like fractured opinions.

If he can influence the opinion, adds Professor Adler, the chief justice “will usually choose to do something more aggressive than his preference if it produces a broader majority.”

His power as chief to assign opinions is valuable in this respect. Many of his more surprising opinions in the past likely wouldn’t have happened if another member of the court had been able to write them.

Indeed, it was Chief Justice Roberts’ qualities as a leader that persuaded George W. Bush to nominate him to the court.

“I believed Roberts would be a natural leader,” former President Bush wrote in his memoir. In fact, it was Brett Kavanaugh – a White House lawyer at the time and now a fellow justice – who advised the president to choose the man who “would be the most effective leader on the Court – the most capable of convincing his colleagues through persuasion and strategic thinking,” the former president recalled.

Justice Kavanaugh voted with Chief Justice Roberts in 95% of cases last term, according to Empirical SCOTUS. According to the Times report, he thanked the chief justice for what he described as “extraordinary work” on the presidential immunity opinion.

As Chief Justice Roberts enters his third decade on the court – a court that may be the most conservative in 90 years – how he uses his power and leadership skills will be telling.