John Roberts has gone full Anthony Kennedy
At least for the moment, the conservative dream of a solid majority on the Supreme Court is dead. The trio of recent votes by Chief Justice John G. Roberts Jr. siding with the court’s four liberal justices shows that Roberts has gone full Kennedy — that is, following in the disappointingly centrist footsteps of previous swing justice Anthony M. Kennedy.
Roberts’s votes — striking down an abortion law, overturning the Trump administration’s effort to end the DACA program for young immigrants, and expanding the federal ban on employment discrimination to cover gay and transgender workers — mark the death knell for conservative hopes that Justice Brett M. Kavanaugh’s replacement of Kennedy would finally produce a reliably conservative court. Short of adding a sixth GOP appointee to the court, the best conservatives can hope for is that Roberts’s drift stops short of the example set by Justice David Souter, who was trumpeted by advisers to President George H.W. Bush as a “home run” for conservatives but who turned out to be a liberal in disguise.
Roberts has disappointed conservatives before, most notably in his contorted effort to save the Affordable Care Act, when he provided the decisive vote to uphold the law in 2012, and has been doing so more often of late. Last year, he blocked the Trump administration’s effort to add a citizenship question to the census, and in April, he helped thwart a challenge to New York City’s stringent gun-control rules. Roberts’s opinion Tuesday allowing Montana parents to use a state scholarship program to send their children to religious schools improved his conservative scorecard record to one win and four losses on the major culture war issues addressed by the court this term. But it did little to change the perception that the chief justice’s drift away from conservative jurisprudence is accelerating.
Roberts would disagree. He claimed in his concurrence in the abortion case that his hand was forced by a 2016 decision striking down a similar Texas law. But the chief justice’s reverence for precedent is situational. A 2007 case, in which Roberts voted with the court’s majority to uphold a federal ban on partial-birth abortion despite a 2000 precedent striking down a similar Nebraska ban, is just one example.
The chief justice’s invocation of precedent is the latest instance of his wont to take an ostensibly narrow and moderate approach that nonetheless yields a politically correct result sure to win praise in the nation’s leading editorial pages and law schools.
https://www.washingtonpost.com/opinions/john-roberts-has-gone-full-anthony-kennedy/2020/07/01/3640fd6a-bbdd-11ea-bdaf-a129f921026f_story.html
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