SEPTEMBER 2020 | AROUND THE ANNUAL MEETING

Tea leaves on CJ Roberts: What his actions say about upcoming High Court term

What a year 2020 has been for the U.S. Supreme Court, which for the first time in its history livestreamed oral arguments and held hearings remotely by phone due to the coronavirus pandemic. Not to mention issuing rulings on such blockbuster cases as the powers of the executive branch, abortion rights, religion, and LGBTQ and workplace rights.

But the 2020 term will be most remembered as the year that the court moved from being the Kennedy Court. “The wheel has turned. The Roberts era has officially begun,’’ said court watcher John M. Barkett, a partner at Shook Hardy & Bacon LLP in Miami, during a panel discussion on July 30 at the 2020 American Bar Association Virtual Annual Meeting.

Clockwise from top left: John M. Barkett, Jamal Greene, Kenneth W. Starr and Leah Litman

Clockwise from top left: John M. Barkett, Jamal Greene, Kenneth W. Starr and Leah Litman

Barkett served as moderator for the ABA’s annual Supreme Court year in review. He was joined on the CLE Showcase Program “The Roberts Court 2019-20: Is the Remote Court Distancing Itself from the Kennedy Era?” by three speakers: Jamal Greene, Dwight Professor of Law at Columbia Law School in New York; Leah Litman, law professor at the University of Michigan Law School in Ann Arbor; and former U.S. solicitor general Kenneth W. Starr, now of counsel at the Lanier Law Firm in Houston.

Barkett has the numbers to support his proclamation that the court is now firmly in the hands of Roberts, who is in his 15th full term as chief justice. The numbers:

  • He wrote more decisions than any other justice except Justice Neal Gorsuch (both with seven).
  • He wrote four 5-4 majority cases that involved religious liberty, administrative law, separation of powers and copyright law.
  • He provided the fifth vote in a crucial Louisiana abortion rights decision.
  • Of the 12 authored five-vote majority decisions, Roberts was in the majority in 11 of them.
  • He was in the majority in 51 of 53 authored opinions.
  • He had only two dissents; his least prior lowest total was five.

“Chief Justice Roberts obviously has positioned himself at the very center of the court,” said Starr. “I have a one-word answer to the chief justice’s voting behavior, power — stay in the majority, stay in control.”

Starr said Roberts has a keen sense of history and his role as the chief justice as he envisions it in protecting the integrity and independence of the court. “And at times this seems to take the form of going against the grain of his own views and certainly his own judicial philosophy,” said Starr, citing Roberts as the key vote in the 5-4 decisions in the Louisiana abortion law case and the DACA immigration case. “Remarkably, he seems willing to subordinate his own views for what he obviously perceives as the good for the institution. In both those cases, he skillfully accomplished a powerplay and in the process he also seemed to insulate the court from dominant cultural criticism while also giving a little pushback from the (Trump) administration.”

Litman, who teaches and writes about constitutional law and federal courts, said Roberts’ “power” was evident in two 7-2 decisions in separate cases brought by Congress and the Manhattan district attorney’s office to subpoena President Donald Trump’s tax returns.

“The chief justice really managed to make both sides feel like they got something out of both opinions,” Litman said. “Ken (Starr) is right when he suggests that the chief justice is mindful of the court’s institutional position as well as his own power and the court’s power.”

Despite Roberts’ voting record this term, Litman said it would be a mistake to say that the chief justice is becoming more liberal as some have suggested.

“It would be a mistake to view the chief justice’s votes in these cases as signaling that he is changing his views or that he is becoming more liberal. Instead, his votes are partially reflective of the fact that the cases before the court are changing; the subpoena cases before the court are evidence of that.”

Greene said he also disagrees with the liberal tag on Roberts.

“I do think he is a certain kind of minimalist. Not a minimalist that he defers to Congress, but a minimalist in the sense that he does like to act incrementally,” Greene said.

“The chief justice does seem to think that it is quite important for him to have a controlling role in various cases,” Greene explained. “And when you look at the court’s docket, certainly this term, the stakes of whether there is someone guiding the court to an outcome that is consistent with its institutional legitimacy are quite high. This term, there were a lot of hot-button issues that people were paying attention to both in the legal space and in people’s day-to-day lives.”

The Roberts Court 2019-20: Is the Remote Court Distancing Itself from the Kennedy Era?” was sponsored by the Division for Public Education and Section of Litigation.