In his impeccable Senate confirmation performance in 2005, John Roberts provided for himself a sort of mission statement. As chief justice, he pledged to be restrained, modest, and deferential toward precedents and legislatures; he would seek consensus and not decide more than was necessary to resolve a case. Modesty, he testified, “means an appreciation that the role of the judge is limited, that a judge is to decide the cases before them, they’re not to legislate, they’re not to execute the laws…. It is their job to say what the law is.” Congressional Republicans, ecstatic about President George W. Bush’s selection of such an impressive nominee, perceived that the conservative legal revolution was finally at hand. They proudly presented Roberts to the nation as the very model of a Supreme Court justice.
The Roberts Court is now completing its eighth term. What do we know about it? For one, its membership has been fluid. Since Chief Justice Roberts assumed his duties, three new justices have joined the Court: Samuel Alito, Sonia Sotomayor and Elena Kagan. By contrast, the Court’s membership under his predecessor, Chief Justice William Rehnquist, remained constant for its final eleven years, lending a degree of stability—if not always predictability—to its decisions that the Roberts Court has so far lacked. The Roberts Court also has a different political composition than the Rehnquist Court. Although Sotomayor and Kagan vote much like their moderately liberal predecessors in politically sensitive cases, Alito is far more conservative than the justice he replaced, Sandra Day O’Connor. The result has been a more reliable but not ironclad conservative majority, with swing justice Anthony Kennedy siding more frequently with the conservatives than with the liberals. Yet this new momentum has not extended to all areas of the Court’s business. Notably, the addition of Alito and Roberts did not arrest the Court’s remarkable disruption of the Bush administration’s aggressive assertions of executive power in the “war on terror.” The most important of these decisions, Hamdan v. Rumsfeld and Boumediene v. Bush, were issued over the conservatives’ dissent.
The Roberts Court has also given itself a few black eyes. Ten years after the Supreme Court issued its most notorious decision in modern times, the nakedly partisan Bush v. Gore, the Roberts Court handed down Citizens United v. FEC, which invalidated key parts of the McCain-Feingold campaign-finance reform law. The decision’s holding that corporations have the same free speech rights as people—and therefore the right to unlimited spending on political advertising—has proven immensely unpopular, calling into question the conservative justices’ political motivations, as well as their grip on reality. Last summer, the Court had another chance to do violence to its reputation in National Federation of Independent Business v. Sebelius, which concerned the Obama administration’s Affordable Care Act. There was a real prospect that the five Republican appointees would invalidate the signature legislative achievement of a Democratic president in the middle of an election year. But Roberts shocked his colleagues and the legal world by joining the liberals for the very first time in a 5–4 decision to uphold the heart of the ACA. Those who worry about the fate of the uninsured poor breathed a sigh of relief. So, too, did those who worry about the Supreme Court’s legitimacy.