John Roberts, Chief Justice of the United States
Back in late 2005, shortly after John Roberts was confirmed as Chief Justice of the United States Supreme Court, I had the opportunity to sit down with him, one on one, for about an hour in his office. I was at the time Chairman of the House Judiciary Committee’s Constitution Subcommittee; that’s why I had such a rare and interesting opportunity. We discussed a lot of things, and the only thing I recall disagreeing on, was whether cameras should be allowed in federal court rooms, Including the Supreme Court. I was for it, having introduced legislation to do so a number of times, and he was against it.
David Souter, Former Associate Justice of the Supreme Court of the United States
During his earlier years on the Supreme Court, Roberts was more or less what most court watchers had expected – a conservative vote on most issues – after all he was appointed by George W. Bush. However, in recent years, he has swung further and further to the left. For whatever reason, we’ve seen this far more with conservative judges going left, than liberal judges going to the right. A non-exhaustive list of Republican-appointed judges who moved left after getting on the Court are: Eisenhower-appointed Justices William Brennan and Earl Warren, Nixon-appointed Harry Blackmun (of Roe v. Wade notoriety), Reagan-appointed Sandra Day O’Connor and David Kennedy, George H. W. Bush-appointed David Souter (a true nightmare), and of course the already-mentioned John Roberts. The only example I can think of, of going the other way, in recent memory, would be John Kennedy-appointed Byron White (God bless him!) But hey, that’s been more than half-a-century ago now!
So let’s look at a few examples of John Roberts’ drift to the left. The first huge surprise/letdown was in his upholding Obamacare. The Obama administration had argued vehemently and consistently during its original consideration by the House and Senate, that it was not a tax. Then when the Supreme Court later took up the appeal of Obamacare, Justice Roberts joined the Court’s four liberals in declaring that it was indeed a tax, even though the Obama administration never argued that it was. I would note that most Republicans opposed Obamacare because we felt the American people deserved better, and supported our own legislation called the American Health Care Act, which included, for example, the requirement that insurance companies cover pre-existing conditions.
Another disappointing decision by Roberts was requiring that all states recognize same-sex marriage. Now it’s clear that public opinion on the issue has evolved dramatically over the years. But it was most conservatives’ opinion that if we were going to change two-and-a-half centuries of American law, it should be done by the legislative branch, not the court. Roberts decided otherwise.
Another recent example – DACA. Barack Obama had famously said he “couldn’t just bypass Congress and change immigration law myself…that’s not how democracy works.” Then he did just that, and called it Deferred Action for Childhood Arrivals (DACA). This was done without a vote by Congress – rather by executive order. Executive orders can be reversed by a following president by another executive order, which is what President Trump did. This should’ve been a slam dunk. But Roberts joined the four liberal judges again and voilà, DACA stands. If there was ever a case of legislating from the bench, this was it.
And then just this week, Roberts and the four Supreme Court liberal judges struck down a Louisiana pro-life law that required abortionists to have admitting privileges in a nearby hospital. Justice Alito in his dissent said this ruling would put women’s health at risk by not requiring that a hospital verify the abortionist’s surgical ability, training, education, experience, practice record and criminal history.
So why do conservative judges on the Supreme Court always tend to trend leftward? My opinion is that Washington DC is like a giant fishbowl, and virtually all the opinion leaders are on the left. The Washington Post, ABC, NBC, CBS, CNN, The New York Times, all the magazines, glowingly cover liberal actions, and scorn conservative ones. It’s like the “working the refs” phenomenon that occurs for the home team at a packed basketball arena. The refs get intimidated, and so do judges in Washington. Roberts is still a relatively young man, 65 (Ruth Bader Ginsberg by comparison is 87), and could be on the court for a long long time.
How far to the left will Roberts drift over the upcoming years? Only time will tell. But the sense of frustration, and betrayal, that many conservatives feel, is overwhelming.