The Greatest Chief Justice?How John Roberts Has Transformed the Supreme Court

Artemus WardDepartment of Political Science

Northern Illinois Universityaeward@niu.edu

LLI – Northern Illinois UniversityDekalb, IL

September 24,, 2013

Roberts on Legitimacy• Alexander Hamilton famously explained that unlike the elected branches, the Court possesses

neither the power of the sword nor the purse. As a result, the Court’s authority rests on its legitimacy in the eyes of elected officials and the American people. Yet when the Court appears to act in unprincipled ways and hands down unpopular decisions on highly controversial issues, it gambles its legitimacy.

• Research shows that the Rehnquist Court (1986-2005) was the most activist Court in history in terms of striking down popularly enacted laws. And we all recall the Court deciding the 2000 presidential election by a 5-4 vote based on ideological lines. Has the Court called its legitimacy into question?

• In a 2007 interview, the new chief justice, John Roberts, said: “If the Court in [Chief Justice John] Marshall’s era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have. That suggests that what the Court’s been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up. I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn’t it is going to lose its credibility and legitimacy as an institution.”

• Jeffrey Rosen. “Robert’s Rules,” The Atlantic (January/February 2007). http://www.theatlantic.com/magazine/archive/2007/01/robertss-rules/305559/.

• Has Roberts done anything to steer the Court away from the sweeping, controversial decisions he alluded to since he became Chief Justice in 2005?

• I suggest that he has done precisely that. Indeed, the biggest cases of the 2012-2013 Term demonstrate how Roberts has changed the behavior of his colleagues.

Operationalizing Judicial Review• My colleagues and I employ a new way to operationalize

judicial review. • Our nuanced measure considers both narrow and broad

variants of upholding or striking behavior. • We identify five distinct categories:

1. Uphold Broadly2. Uphold Narrowly3. Strike Down As Applied4. Strike Down On Face Narrowly5. Strike Down On Face Broadly

• We coded all the decisions of the final (last natural) Rehnquist and Roberts Courts (1994-2011 terms) involving the constitutionality of federal legislation.

Table 1. Judicial Review Outcomes: Roberts Court v. Rehnquist Court (1994-2011 Terms)

Judicial Review Outcome Roberts Ct. Rehnquist Ct.

Uphold Broad 2 (7.1%) 9 (15.5%)

Uphold Narrow 11 (39.3%) 15 (25.9%)

Strike As Applied 8 (28.6%) 7 (12.1%)

Strike Narrow 4 (14.3%) 21 (36.2%)

Strike Broad 3 (10.7%) 6 (10.3%)

3 Narrow Categories Comb. 23 (82.1%) 43 (74.1%)

Table 2. Minimalist Justices (1994-2011)

JusticeUphold Broad

Uphold Narrow

Strike As Applied

Strike Narrow

Strike Broad

3 Narrow Cat. Comb.

Kagan 1 (11.1%) 3 (33.3%) 4 (44.4%) 1 (11.1%) 0 (0.0%) 8 (88.9%)

Alito 0 (0.0%) 13 (52.0%) 3 (12.0%) 6 (24.0%) 3 (12.0%) 22 (88.0%)

Roberts 2 (7.1%) 11 (39.3%) 8 (28.6%) 4 (14.3%) 3 (10.7%) 23 (82.1%)

Sotomayor 5 (29.4%) 6 (35.3%) 4 (23.5%) 1 (5.9%) 1 (5.9%) 11 (68.8%)

Kennedy 18 (20.9%) 16 (18.6%) 11 (12.8%) 30 (34.9%) 13 (15.1%) 57 (66.3%)

Thomas 19 (22.1%) 18 (20.9%) 9 (10.5%) 29 (33.7%) 11 (12.8%) 56 (65.2%)

Scalia 18 (20.1%) 18 (20.9%) 8 (9.3%) 27 (31.4%) 11 (12.8%) 53 (61.6%)

Souter 19 (27.9%) 11 (16.2%) 9 (13.2%) 21 (30.9%) 8 (11.8%) 41 (60.3%)

Breyer 32 (37.2%) 17 (19.8%) 15 (17.4%) 17 (19.8%) 5 (5.8%) 49 (60.0%)

Ginsburg 31 (36.5%) 17 (20.0%) 10 (11.8%) 21 (24.7%) 6 (7.1%) 48 (56.5%)

O’Connor 19 (33.9%) 7 (12.5%) 5 (8.9%) 19 (33.9%) 6 (10.7%) 31 (55.4%)

Stevens 26 (36.1%) 20 (27.8%) 5 (7.0%) 14 (19.4%) 7 (10.0%) 39 (54.2%)

Rehnquist 21 (36.3%) 7 (12.1%) 3 (5.2%) 11 (19.0%) 6 (10.3%) 21 (36.2%)

Table 3. Judicial Minimalists: Justices Most Likely to Rule Narrowly, Comparing the Roberts and Rehnquist Courts (1994-2011)

Justice Roberts CourtNarrow Decisions

Rehnquist CourtNarrow Decisions

Souter 9 (90.0%) 32 (55.2%)Kagan 8 (88.9%) -Alito 22 (88.0%) -

Roberts 23 (82.1%) -Breyer 23 (82.1%) 26 (44.8%)

Stevens 13 (76.4%) 13 (23.6%)Kennedy 21 (75.0%) 34 (58.6%)Ginsburg 20 (74.0%) 28 (48.3%)

Scalia 20 (71.4%) 33 (56.9%)Sotomayor 11 (68.8%) -

Thomas 18 (64.3%) 38 (65.5%)

Table 4. Minimalist Courts: Comparing Total Votes on Roberts and Rehnquist Courts (1994-2011)

Uphold Broad

Uphold Narrow

Strike As Applied

Strike Narrow

Strike Broad

3 Narrow Cat. Comb.

Total Votes on Roberts

Court25

(10.2%)98

(40.0%)53

(21.6%)37

(15.1%)32

(13.1%) 188

(76.7%)Total Votes

on Rehnquist

Court

186(36.0%)

74(14.3%)

47(10.0%)

162(31.3%)

48(9.3%)

283(54.7%)

Table 5. Judicial Review Outcomes and Consensus on the Roberts and Rehnquist Courts, 1994-2011.

Judicial Review Outcome

# DissentsUphold Broad

Uphold Narrow

Strike As Applied

Strike Narrow

Strike Broad Total

0 RobCt RehnCt

0 (0%)3 (25.0%)

4 (57.1%)3 (25.0%)

3 (42.9%)2 (16.7%)

0 (0%)4 (33.3%)

0 (0%)0 (0%)

712

1 RobCt RehnCt

0 (0%)0 (0%)

1 (25.0%)3 (75.0%)

2 (50.0%)0 (0%)

0 (0%)1 (25%)

1 (25.0%)0 (0%)

44

2 RobCt RehnCt

2 (40.0%)2 (22.2%)

2 (40.0%)3 (33.3%)

0 (0%)2 (22.2%)

1 (20%)0 (0%)

0 (0%)2 (22.2%)

59

3 RobCt RehnCt

0 (0%)2 (16.7%)

0 (0%)3 (25.0%)

1 (100%)2 (16.7%)

0 (0%)3 (25.0%)

0 (0%)2 (16.7%)

112

4 RobCt RehnCt

0 (0%)2 (9.5%)

4 (36.4%)3 (14.3%)

2 (18.2%)1 (4.8%)

3 (27.3%)13 (62.0%)

2 (18.2%)2 (9.5%)

1121

RobCtRehnCt

Total

2 (7.1%)9 (15.5%)

11

11 (39.3%)15 (25.9%)

26

8 (28.6%)7 (12.1%)

15

4 (14.3%)21 (36.2%)

25

3 (10.7%)6 (10.3%)

9

28 (100%)58 (100%)

Consensual Minimalism• The previous table reveals that overall the Roberts Court was able to

reach consensus (as defined by unanimous decisions as well as decisions with only one or two dissenting votes) more often than the final Rehnquist Court (57.1% v. 43.1%).

• This may be because the Roberts Court acted more minimally (again, by combining the Uphold Narrow, Strike As Applied, and Strike Narrow categories) than did the Rehnquist Court in those cases (81.3% v. 72%).

• Indeed, as a percentage of all the judicial review decisions decided by each Court, the Roberts Court was more consensually minimal (the combination of the three minimal categories for unanimous decisions and those with only one or two dissents) than the Rehnquist Court (46.4% v. 31%).

• Again, it is plain from these data that a shift toward consensual minimalism has occurred under Chief Justice Roberts.

Fisher v. Texas (2013)• The Court was confronted with the issue of affirmative action in University admissions.• In Board of Regents of the University of California v. Bakke (1978) and Grutter v.

Bollinger (2003) the Court held that race could be considered by university admissions committees as one factor among many in order to achieve a diverse student body.

• The Court said in these cases that race-based policies should be judged under “strict scrutiny” meaning that the state must have a compelling interest in considering race (student-body diversity) and the policies must be “narrowly tailored” to achieve that interest.

• In Fisher, many thought the justices might overturn Grutter and Bakke and end affirmative action. Yet the Court voted 7-1 for a narrow, minimal outcome. Specifically, Kennedy (joined by Roberts, Alito, Breyer, and Sotomayor) sent the case back to the court of appeals with instructions that they apply strict scrutiny (the court of appeals had simply assumed the state acted in good faith).

• Justices Scalia and Thomas reiterated their position from previous cases that affirmative action is unconstitutional. Justice Ginsburg was the lone dissenter arguing that the court of appeals inquiry was appropriate.

• In sum, Fisher is an example of the Roberts Court avoiding a broad, activist result on a controversial issue.

Shelby County v. Holder (2013)

• The Court acted similarly in Shelby County invalidating Section 4 of the Voting Rights Act (VRA) that established the formula and criteria for determining whether a state or voting district would be subjected to the “preclearance” provisions of Section 5 of the Act States who meet those criteria must submit any changes in voting procedures or voting districts for approval by the Justice Department before those changes can go into effect.

• Writing for the 5-4 majority, Chief Justice Roberts reasoned that because the criteria have remained the same since the 1960s and 70s, they may not reflect current conditions in the states that have been subjected to the preclearance provisions for decades now.

• Still, the Court did NOT strike down Section 5 of the Act which would have been far more dramatic and far-reaching. Roberts’ majority opinion in the case was limited to Section 4, and it expressly showed deference to congressional authority over the broader policy area.

• Indeed, the opinion is clever because he is able to show deference to the legislative branch at a time when the current state of affairs in Congress makes it unlikely that they will take up the invitation to rewrite Section 4.

• In sum, invalidating Section 4, rather than Section 5, of VRA was a more narrow, minimal decision. To have struck down Section 5 would have been to essentially invalidate the Voting Rights Act which has been in place since 1965.

The Gay Marriage Cases• In U.S. v. Windsor (2013), the Court struck down 5-4 (Kennedy, Ginsburg, Breyer,

Sotomayor, Kagan) a federal law that did not allow federal recognition for gay couples who were legally married by states. The law in effect denied federal marriage benefits in taxes, estates, and related matters. In Hollingsworth v. Perry (2013), the 5-4 majority (Roberts, Scalia, Ginsburg, Breyer, Kagan) said that because the state declined to participate in the case and a private party instead brought the appeal, the case could not be decided by the Supreme Court.

• What the Court did not do in the gay marriage cases is to declare a fundamental right to gay marriage as they did in Loving v. Virginia (1967) with regard to interracial marriage. In Loving the Court said that the Equal Protection Clause forbids states from restricting marriage on the basis of race. The Court could have made a similar holding in Perry but chose to avoid that issue altogether by deciding the narrow question of whether or not the party bringing the suit had the legal status to do so.

• Consider Roberts’ dissent in Windsor: “I write only to highlight the limits of the majority’s holding and reasoning today, lest its opinion be taken to resolve … a question that all agree, and the Court explicitly acknowledges, is not at issue.” Instead of the broad question of a fundamental right to gay marriage that states may not restrict, the narrow issue for the Court was only whether those legally married in a state can be denied federal marriage benefits. Kennedy’s majority opinion in Windsor states: “This opinion and its holding are confined to those lawful marriages.” Thus, Windsor has no effect on states that forbid gay marriage. In sum, the Court ruled narrowly in both cases.

Conclusion and Implications

• The Roberts Court rules narrowly far more often than it rules broadly.• Justices serving with both Rehnquist and Roberts ruled more narrowly under

Roberts (except Thomas).• The Roberts Court is a far more minimalist Court than the Rehnquist Court.• The Roberts Court’s minimalism has led to a greater degree of consensus

than was the case under Rehnquist (e.g. Fisher v. Texas).• The Roberts Court has only been able to achieve unanimity by ruling

narrowly.• The 2013 Term ended up being far less dramatic (and therefore less

damaging) than it could have been had Roberts not pressed his colleagues for minimal results.

• What would have been the effect on the Court had the justices abolished affirmative action, struck down the Voting Rights Act, and granted a fundamental right to gay marriage?

• Both liberals and conservatives would have been outraged. Instead, the Court’s narrow decisions provide both small victories and small losses for everyone. Chief Justice Roberts is responsible.

National Federation of Independent Business v. Sebelius (2012)

• Roberts wrote the majority opinion that upheld the individual mandate provisions of the Affordable Care Act (ACA), but only because they could be considered a tax and thus valid under Congress’s taxing power.

• While effectively showing some deference to Congress, he also managed to limit federal commerce power and protect states from losing Medicaid funding if they didn’t satisfy coercive conditions placed on them under the ACA.

• Conservatives were thrilled with the commerce clause portion of the holding while liberals were thrilled that the ACA survived. Roberts was thrilled that the decision protected the Court from a frontal assault from the Obama administration which is what they were plainly being threatened with from the start.

Citizens United v. Federal Election Commission (2010)

• The U.S. Supreme Court issued a broad decision striking down sections of the McCain-Feingold campaign-finance law.

• Writing for a five-justice majority, Justice Anthony Kennedy ruled that the statute’s prohibition on political advertising in the run-up to elections by corporations and unions was an unconstitutional restriction of political speech.

• Using broad language, Kennedy wrote: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Citizens United v. Federal Election Commission (2010)

• Yet at their initial conference vote on the case the same five-justice majority voted far more narrowly.

• Instead of declaring the campaign limits unconstitutional, the majority said that the law did not apply to the specific communication in question—in this case a feature-length documentary about Hillary Clinton that was to be shown on cable and satellite television.

• Chief Justice John Roberts assigned the majority opinion to himself, drafted it, and circulated it to his colleagues.

• Justice Kennedy was not satisfied with Roberts’ narrow, as-applied analysis and Kennedy circulated his own concurrence.

• He explained that the Court should have issued a broader ruling, not only declaring McCain-Feingold’s restrictions unconstitutional but also questioning and even overturning prior Supreme Court decisions that allowed restrictions on corporate giving.

• Kennedy’s broad concurrence gained adherents and Roberts withdrew his opinion and supported Kennedy’s as the opinion of the Court.

Citizens United v. Federal Election Commission (2010)

• Ultimately, Kennedy’s opinion became the law of the land and transformed Citizens United from what would have been a relatively minor as-applied, statutory campaign finance decision into a landmark First Amendment case that opened the door for greater involvement from corporations in political elections.

• To be sure there is a world of difference between Roberts’ as-applied opinion and Kennedy’s constitutional one.

• Yet in both scenarios Citizens United won the case and a Supreme Court majority supported the free-speech position over government restrictions.

• But classifying each decision as simply pro-free-speech misses important distinctions between relatively narrow statutory rulings and broad constitutional pronouncements.

Conceptualizing Judicial Review

• In almost all studies of judicial decision making, judicial review has been conceptualized as a dichotomous—uphold or strike down—choice.

• The Supreme Court Database allows researchers to use this measure (combining “uncon” and “auth_dec” variables).

• Scholars have used it to find that ideology influences the decision to strike or uphold (Segal and Spaeth 2002; Sala and Spriggs 2004; Keck 2007).

• We suggest that the dichotomous coding scheme has resulted in a situation where legal and institutional factors have been deemphasized in favor of ideology.

As-Applied v. On Face• Despite the preoccupation with dichotomizing

judicial review, some scholars have discussed a more sophisticated conceptualization—namely a distinction between striking down legislation on its face or as applied.

• Normative theorists have extolled the “passive virtues” of judicial minimalism or narrow rulings as deferential to legislative majorities (e.g. Bickel 1961; Sunstein 1999).

• Empirical work has found:– the justices first decide to strike or uphold and then

decide whether to do so as applied or on face (Lindquist and Corley 2011);

– Congress is more likely to amend legislation when the Court strikes down on face (Pickerill 2004).

Operationalizing Judicial Review• We propose a new way to operationalize

judicial review. • Our nuanced measure considers both narrow

and broad variants of upholding or striking behavior.

• We identify five distinct categories: 1. Uphold Broadly2. Uphold Narrowly3. Strike Down As Applied4. Strike Down On Face Narrowly5. Strike Down On Face Broadly

Table 1. Typology of Judicial ReviewUphold Broadly

Uphold Narrowly

Strike Down As Applied

Strike Down On Face

Narrowly

Strike Down On Face Broadly

• Uphold in entirety

• No limitations on decision or state action

• Uphold with limitations on decision or state action

• Uphold as applied

• Strike down as applied

• Strike down based on facts

• Specific provisions severed and struck down

• Strike down on face but with direction for alternatives to achieve policy ends

• Strike down on face broadly because policy area is not within the power of state actor

CODING AND MEASURING JUDICIAL REVIEW: ILLUSTRATIVE CASES

• We trained two student research assistants and had them code the decision to fit into one of the five categories using the definitions in the previous section as the decision-rules.

• We began with cases we were familiar with and that we thought exemplified the categories based on our own reading.

• The research assistants independently coded each of the following cases in the categories we had predetermined, indicating that the stated decision-rules were reasonably clear and could be implemented.

Table 2. Variation in Upholding Behavior: Illustrative Cases

Uphold Broadly

U.S. v. Comstock (2010)

• "The Constitution ‘addresse[s]’ the ‘choice of means’ ‘primarily … to the judgment of Congress. '"

• "[The law] is a modest addition to a longstanding federal statutory framework."

Uphold Narrowly

Milavetz, Gallop & Milavetz v. U.S. (2010)

• "After reviewing these competing claims, we are persuaded that a narrower reading of [the statute] is sounder, although we do not adopt precisely the view the Government advocates."

Table 3. Variation in Striking Behavior: Illustrative CasesStrike Down As Applied

FCC v. Fox Television Stations (2012)

-- “Because the Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the Commission’s standards as applied to these broadcasts were vague”-- “It then applied this new principle to these cases. Its lack of notice to Fox and ABC of its changed interpretation failed to give them ‘fair notice of what is prohibited.’”

Strike Down On Face Narrowly Pepper v. U.S. (2011)

-- “Because ‘departures are not available in every case, and in fact are unavailable in most,’ [citation omitted] we held that remedying the Sixth Amendment problem required invalidation of § 3553(b)(1). That same remedial approach requires us to invalidate § 3742(g)(2).”-- “District courts post-Booker may consider evidence of a defendant’s postsentencing rehabilitation at resentencing and such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.”

Strike Down On Face BroadlyCitizens United v. FCC (2010)

-- “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”-- “This case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment's meaning and purpose.”

CODING AND MEASURING JUDICIAL REVIEW: The Final Rehnquist and Roberts Courts (1994-2011)

• We used the Supreme Court database to identify all the decisions of the final (last natural) Rehnquist and Roberts Courts (1994-2011 terms) involving the constitutionality of federal legislation.

• Consistent with the United States Supreme Court database, we coded for the case outcome and the individual votes of each justice.

• The research assistants were instructed to extract and record language from opinion(s) in the decision that justified their coding decision(s).

• For the 2011-2012 term we read the syllabus for every case decided by the Court and identified those in which the Court decided the constitutionality of federal legislation.