To mark the 10th anniversary of John Roberts’s appointment as chief justice, The Nation asked 10 accomplished and perceptive scholars, lawyers, and writers to review a case or two from the Roberts Court’s first decade. The result provides a cogent and important reminder of how the Roberts Court has used its considerable power to make access to the courts more difficult for the victims of discrimination and other wrongs; to strike down efforts to ameliorate racial injustice in voting and education; to clear the way for executions by inhumane methods and after unfair trials; to block campaign finance reform; to deny remedies for police abuse; and to threaten the continued existence of public-sector unions. This is a conservative Court, and it has not been afraid to use its authority to further conservative ends and to undermine or negate liberal reforms.
But this is a partial list. Had the editors asked the authors to cover 10 equally important liberal-leaning Roberts Court decisions, this issue would feel very different. This is the Court, after all, that required every state in the union and the federal government to recognize same-sex couples’ right to marry. It rejected two major challenges to Obamacare. It ruled against the Bush administration twice in cases involving “enemy combatants” in the so-called war on terror, insisting, among other things, that Al Qaeda detainees must be protected by the laws of war. It required police to obtain a warrant to search the cell phones of arrestees and ruled that GPS monitoring of a car’s public movements implicates Fourth Amendment privacy rights—recognizing in both cases that it must adopt different rules to preserve privacy in the digital world. It has prohibited the sentencing of juveniles to mandatory life without the possibility of parole and affirmed a court order that required California’s overcrowded prisons to reduce their population dramatically. It struck down major parts of Arizona’s anti-immigrant law. And it has protected the rights of unpopular speakers, invalidating laws prohibiting the depiction of animal cruelty, the sale of violent video games to minors, and lying about one’s military honors.
So the picture is considerably more nuanced than the cases selected for discussion here would suggest. The Roberts Court is unquestionably a conservative institution, although by just a single vote. Five of its members were appointed by Republican presidents, four by Democrats. Moreover, the Supreme Court has long been conservative; indeed, since Richard Nixon took office in 1969, Republican presidents have appointed 12 justices, and Democrats only four.
Given the lopsided Republican advantage in appointments over the last half-century, it’s not surprising that the Court has reached many conservative results. The surprise, rather, is that the Court has also issued a significant number of liberal decisions in recent decades. Republican appointees David Souter, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, and Anthony Kennedy have sided with liberal causes far more often than their Republican pedigrees would have predicted. Even John Roberts has surprised, voting to save the Affordable Care Act, for example, from a constitutional challenge that his four conservative colleagues were eager to embrace (although he, along with Justices Breyer and Kagan, joined the four other conservatives to invalidate part of the law that conditioned continued Medicaid funding on states’ expansion of their Medicaid coverage).