For purposes of this article, this writer is only using Justice agreement in non-unanimous cases. Although there could be varying reasons for reaching a 9-0 conclusion, parsing the differences would prove a time-consuming task. Instead, the purpose of this article is to answer the question whether the Roberts Court generally is drifting Left and if John Roberts in particular is drifting to the Left. Most of the criticism against John Roberts specifically is centered on two cases- the NFIB vs. Sebelius case and the King vs. Burwell case, both involving Obamacare and both saving that law. It should be noted that in neither case was the constitutionality of the law decided. Instead, it was transformed into a tax case in the original litigation and the second was one of statutory interpretation.
Generally speaking, there are three wings on the Supreme Court- the conservatives consisting of Scalia, Thomas and Alito, the liberals consisting of Breyer, Ginsburg, Kagan and Sotomayor, and the moderates or swing voters- Kennedy and Roberts. In the past term, Roberts had the greatest degree of agreement with the three conservatives where he would side with them slightly less than two out three opportunities. The reason some of these decisions in the most recent term came out in favor of the liberal wing is attributable to Kennedy, not Roberts. Kennedy sided with the liberals greater than 60% of the time this term in non-unanimous cases while siding with the conservative wing less than 50% of the time. That is the first time this has happened since Kagan joined the Court. In fact, as recently as 2011 Kennedy had an agreement rate exceeding 60% with the conservative wing of the Court. That has slowly eroded over time despite who the Justices are/were.
As for Roberts, in 2008 (pre-Kagan and Sotomayor), his agreement rate with the liberal wing was 35.2% which increased to 46.4% in 2011 (post-Kagan and Sotomayor) to 42.9% this past term. With respect to agreement with the conservative wing, his agreement has eroded somewhat from 80.7% in 2008 to 79.3% in 2011 and 63.1% in 2014. Taken together, it is the dramatic shift by Kennedy, rather than the gradual drift of Roberts, that is the contributing factor towards the perception that the Court is drifting Left.
Considering the fact that the number of 5-4 decisions this past term exceeded the Roberts Court average, some of the 5-4 decisions did fall along the traditional left/right divide with Roberts or Kennedy being the deciding factor. Looking back at 18 of these cases, the liberal view prevailed 11 times and the conservative argument winning 7 times. In the cases won by liberals, Kennedy was the deciding factor 8 of 11 times, Roberts twice and Thomas once. Conversely, Roberts was a deciding factor in 6 of the 7 conservative outcomes and Kennedy only three times, the reason being weird voting alignments where a traditionally conservative Justice voted along liberal lines. The Roberts-Kennedy alignment was a factor three times (Wynne, Din, and Horne) meaning that Kennedy was the deciding vote in only 2 of 7 conservative outcomes (Utility Air, Glossip). In fact, Kennedy was the deciding vote in the 2007 decision Massachusetts vs. EPA which granted the EPA the authority to regulate greenhouse gases, but he was the deciding vote in this year’s decision that put some brakes on the EPA regulations. As for Glossip, it is a little surprising that Kennedy would agree with the conservative outcome given his misgivings about the death penalty. For example, he has sided with the liberals when it comes to execution of underage offenders and the mentally ill and he has refused to extend capital punishment to truly heinous crimes like rape. He has been a less than enthusiastic supporter of capital punishment overall and has frequently cited international rather than constitutional law.
Despite Roberts twice upholding Obamacare, we need to look at his performance in general, not just based on two major cases with which we disagree. Remember that in the NFIB case, Kennedy unleashed a blistering dissent on the Roberts majority opinion yet he voted with the majority in King vs. Burwell to uphold the subsidy. Conversely, Roberts unleashed strongly worded dissents in cases where Kennedy jumped to the liberal majority. In the Obergfell case, his dissent was pointed and at times incendiary. He squarely pointed his finger at Kennedy basically accusing him of reaching a desired outcome at any cost. In the Arizona redistricting case, he again went on the attack, this time against Ginsburg with whom Kennedy agreed since he did not nuance that agreement with a concurring opinion.
In some sense, people will look back on this term and consider it a victory for liberals in many respects. If anything, this was really an average year for the Court. They decided 73 cases (10-year average is 76). There were the fewest unanimous decisions since 2008, but they certainly did not set a record for 5-4 cases either. There were some strange voting alliances, but even that is not out of the ordinary. In terms of opinions, Thomas, Scalia and Alito were the most vocal- the conservative wing. Collectively, they wrote 47 dissenting opinions while the liberal wing wrote 12 dissenting opinions between four Justices.
Sometimes we base our perceptions on unrealized expectations. Before we relegate John Roberts to the dustbin of failed conservative appointees based on Obamacare cases, his record has to be looked at in its totality. In areas of political speech and religious rights he has proven a strong advocate of conservative positions. Be it Citizens United, Heller and McDonald, or Hobby Lobby, these are decisions where conservatives take solace. Yes, his rulings in the Obamacare cases are disappointments. But we can say the same thing of other more conservative Justices also at times.
One final point and that involves a couple of cases turned down this year. To date, perhaps the biggest and most important case taken so far for the next term is the redistricting case out of Texas and the meaning of “one man, one vote.” Many of the cases deal with patents and technology, or criminal law due process cases. I find it surprising that they have not heard a true abortion case in many years. They have had the opportunity, but declined the offer. There is a case out of Mississippi pending and recently they (in a 5-4 conference vote) put a stay on Texas enforcing their law. Kennedy was the deciding vote there.
The other case of note was their refusal to take a gun control measure in San Francisco for review. The law in question did not ban the possession of firearms as was the case in two previous gun control cases, but instead they had to have trigger safety locks, be stored in a secure safe, or disassembled if maintained in a home. The reason for denial of that appeal was not given.