By Noah Feldman
When the 2018 Supreme Court term began in October, all eyes were on the confirmation of the newest justice, Brett Kavanaugh. By the time the term wrapped up in June, the center of attention was Chief Justice John Roberts.
And that’s where the focus is likely to stay as long as the court continues in this configuration. So far, the retirement of Justice Anthony Kennedy last summer has not had the effect of turning the court into a reliable forum for 5-4 decisions with the conservatives on top. Instead, Roberts seems to be embracing the role of the centrist — as he did most prominently in this term’s marquee case, blocking (at least temporarily) President Donald Trump’s administration from adding a citizenship question to the 2020 census.
Not every swing voter is the same, however. Roberts is extremely different from Kennedy. And Kennedy was markedly distinct from Justice Sandra Day O’Connor, who held the centrist balance-of-power role for almost 25 years.
To see where the court is now — and where it’s going — it is important to understand what’s behind Roberts’s approach, and how it differs from what came before.
O’Connor was a highly pragmatic balancer. She was the last justice to have had significant legislative experience, rising to become majority leader in the Arizona State Senate. O’Connor had an instinctive sense for where the median U.S. voter stood on an issue — and she tried to put the court in that same spot. Her middle-of-the-road opinions often frustrated ideologues on both sides, because they were so clearly based on compromise rather than abstract principle.
O’Connor’s archetypal compromise decisions came in a pair of affirmative action cases involving the University of Michigan’s college admissions process and its law school admissions process.1 O’Connor voted to strike down the college process because it treated race as a criterion on its own. She upheld the law school process because it treated race as one factor among others in a “holistic” process.
Then she added one of the most pragmatic sentences in all of the U.S. Reports, with her expectation that affirmative action would remain constitutional for 25 years more, and would then most likely no longer be needed. This imported the idea of pragmatic necessity into the equal protection clause of the Constitution.
Kennedy, in contrast, loved grand principles — like “dignity,” his personal favorite, which he adapted from international human-rights doctrine and Catholic thought. His swing decisions tended to ring with high rhetoric, not pragmatism. What made him a centrist was that sometimes his principles led him to the left (as in his signature gay marriage decision) and sometimes to the right (as in a series of states’ rights cases where he trumpeted the “dignity” of the state).
Roberts is neither a compromiser nor an advocate of abstract values. Rather, he is a disciple of the doctrine of judicial restraint as influenced by the late Justice Felix Frankfurter in an academic and judicial career that spanned the first six decades of the 20th century.
Over the years, judicial restraint has been deployed by both liberals and conservatives. Typically, and embarrassingly, whichever side has five votes on the Supreme Court forgets about restraint, and the side that has only four trumpets the idea that the court should not take activist decisions that strike down legislation.
Roberts seems to be a true believer. In practice, he emphasizes the strand of judicial restraint that warns that the courts should avoid seeming like a partisan political actor, substituting its judgment for that of Congress and intervening in favor of one side.
This approach explains Roberts’s census case opinion. He sided partly with the court’s four conservatives, holding that in principle there’s nothing wrong with the Trump administration’s adding a citizenship question. But he didn’t want to be seen rubber-stamping the secretary of commerce’s preposterous explanation for why the citizenship question was being added. Doing so would have made the decision look partisan. So Roberts voted with the liberals in a part of his opinion that told the administration to go back and give a new, honest explanation.
The same judicial restraint principles also explain Roberts’s decisive fifth vote — and his opinion — in the partisan gerrymandering case, the other most noteworthy decision this past term.
Frankfurter always warned that the court should avoid getting involved in deciding cases about gerrymandering, which he considered “political questions” that could not be decided without favoring one party or another. Frankfurter did not even want the court to introduce the principle of “one person, one vote” — because he thought it would put the court on the impossible path of having to judge every legislative districting decision.
With regard to that prediction, at least, Frankfurter was right. Today, one person, one vote is a cardinal principle of voting fairness when it comes to race. But in other contexts, judicial activism on elections has led to such outcomes as the Bush v. Gore decision. The court’s holding that gave the 2000 presidential election to George W. Bush was based on the outrageous theory that not all Floridians were getting the equal protection of the laws if some of their ballots were recounted using different techniques from other ballots.
Roberts, in declining to create a right against partisan gerrymandering, without a doubt believed he was saving the court from future decisions that would be highly partisan either in reality or in perception. Justice Elena Kagan’s extremely powerful dissent made the case that partisan gerrymandering erodes democracy so disastrously that neglecting to repair it cannot be the right course of action. But to that, an advocate of judicial restraint would answer that partisan gerrymandering is a political problem and should be solved by the government’s political branches, not the courts.
The takeaway is that Roberts will be a centrist mostly when he is trying to channel Frankfurter’s spirit and avoid judicial partisanship. What that will mean for the court’s biggest upcoming cases — like DACA and abortion rights —is a topic court watchers will be returning to for the next several years.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.