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One Trait Helps Define John Roberts' Court

Newser — John Johnson

The Supreme Court's unusual term has come to an end, and Chief Justice John Roberts managed to anger President Trump on multiple occasions, including on DACA, gay rights, abortion, and the privacy of Trump's own financial records.

So what's going on with Roberts, a 65-year-old lifelong conservative? Various analysts weigh in:

  • Still on the right: Roberts may not be the "revolutionary that conservative activists want him to be," but "he is still deeply and unmistakably conservative, pulling the law to the right—at his own pace and in his own image," writes Sam Baker at Axios.

So, no, he's not turning liberal. If you examine his rulings, "the law either stays put or moves to the right almost every time he is in the majority," including in cases where he sides with the four more liberal justices.

  • A theory: At USA Today, Richard Wolf notes that in the biggest cases of the term, the court "often ruled incrementally" by sending cases back to lower courts (as happened Thursday with Trump's financial records).

This is in keeping with Roberts' judicial outlook. But Wolf also notes the effect of 2020: "One theory making the rounds as the term drew to a close was that Roberts, and perhaps several of his colleagues, wanted to project unity and calm during a pandemic and a presidential election year."

  • Another trait: Roberts is no liberal, but he is an "institutionalist," and he might be worried about the court's independence in a highly polarized political environment, writes Lisa Lerer in the New York Times.

She quotes constitutional law professor Leah Litman, who clerked for Anthony Kennedy: “The court’s role as an institution in American government has come under increased pressure.

If it looks very political and partisan, it might not be long for this world in its current form.”

  • Ditto: An analysis at Bloomberg Law by Kimberly Strawbridge Robinson also takes note of the "institutionalist" angle, pointing out that when Roberts sides with liberals, it's almost always because of "institutional concerns." This year's abortion ruling on Louisiana is a good example—that was about abiding by court precedent, not ideology.

In terms of his conservatism, she notes that he ranks among the top third of conservative Supreme Court justices in the Martin-Quinn ideological rankings.

  • Genius? A headline on a piece at Slate by Dahlia Lithwick and Mark Joseph Stern hails the "political genius" of Roberts.

Take Thursday's Trump rulings: Yes, they rejected his claims of immunity as president, but they also kept Trump's records shielded for the near future. "You can’t help but admire the deftness of Roberts’ ability to simultaneously split the baby, persuade both sides that they won, and score indisputable points for judicial supremacy, all while also achieving nothing immediate." In their view, Roberts is preserving conservatism while opposing "Trumpism." You may disagree with Roberts' views on various issues, but he "deserves credit not just for protecting his court from Trump, but also for positioning it to fight another day."

  • Legacy: At CNN, Elie Honig has a similar sentiment.

"I believe Roberts is conscious of his legacy as chief justice and does not want his tenure to go down in history as the one where the court became hopelessly divided along political lines."

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