Is Chief Justice John Roberts an Institutionalist? A Historical Institutionalist Analysis

Abstract

Chief Justice John Roberts is often called an “institutionalist,” indicating that he places the good of the Supreme Court as a governing institution over his own political preferences. This description is true only to a limited extent. The historical institutionalist analysis presented here shows that Roberts’s priority is to advance his version of the modern conservative legal movement’s vision of the Constitution, and that he protects the judiciary as an institution in the service of that cause. But because many Americans do not share that vision of constitutionalism, and because its endorsement of executive power may undermine judicial authority, the decisions of the Roberts court may only compound the difficulties facing both the court and the country today. I also discuss implications of the Chief Justice’s disposition, both for the court and for the nation’s evolving conception of constitutionalism.

The Debate over Roberts’s Rule

Most scholars agree that the Supreme Court has become extraordinarily influential in American governance (Whittington 2007). Commentators once differed on how influential Chief Justice John Roberts is. Few now question his significance after a term in which he steered the court to decide, and wrote majority opinions in, cases abdicating long-established judicial deference to administrative decision-making, preventing the states from barring insurrectionists from federal election ballots, and authorizing absolute immunity for a president’s official acts (Liptak and Kantor 2024). These developments have renewed debate over what drives Roberts’s decision-making.

My view is this: John Roberts believes that, conscientiously interpreted, the U.S. Constitution embodies a version of the vision of American constitutionalism that is favored by the modern conservative legal movement. He decides cases accordingly. Insofar as he can be labeled an “institutionalist,” it is because his conservative vision of the Constitution prescribes a significant role for the Supreme Court. He also knows that the powers and prestige of the court must be protected if it is to be effective in upholding conservative constitutionalism. But as the 2023–2024 term confirmed, his priority is upholding conservative constitutionalism.

Roberts’s decision-making has had an ironic result: In a country deeply divided over constitutional conservativism, Roberts’s tenure as chief justice has led to the opposite of what he has said he seeks to achieve. The American public now respects the court less than ever and sees it as more political than ever. More than two-thirds see the justices as following their ideologies rather than the law (Associated Press-NORC 2024; Levendusky et al. 2024). The court’s unpopularity almost certainly emboldened President Joe Biden to propose major institutional reforms (Biden 2024). But with Congress closely divided, institutional reforms are not likely to occur. Instead, changing the negative perceptions of the court will probably require developments in American politics that go well beyond the judiciary’s structure.

Because Roberts genuinely believes the Constitution embodies the conservative movement’s vision of it, he sees perceptions of him as an ideologue as unfair and destructive. His faith in his understanding of the Constitution partly explains why, at his Senate confirmation hearing in 2005, he could declare that judges “are like umpires” whose job is “to call balls and strikes” (New York Times 2005). Cynically or naïvely, Roberts endorsed what liberal scholars long ago dismissed as “mechanical jurisprudence”: the view that judges can and should neutrally apply legal rules to cases brought before them, while deferring to other officials when the law provides no clear answers or mandates such deference. Roberts knew that it was politic to contend that he was apolitical. But he has since relentlessly persisted in such self-descriptions, eschewing public endorsement of any jurisprudential school or political ideology. He presents himself as a judge applying the law, and nothing more. It seems likely that he believes this.

Few analysts think that it can be that simple. Most characterize Roberts as a “conservative,” though they differ on what that term means, and whether it is good or bad (e.g., Alicea 2012; Biskupic 2019). In 2007, Jeffrey Rosen argued that the still-new chief justice gave highest priority to “the court’s institutional role” and to preservation of its “institutional legitimacy” through reaching decisions, often narrow ones, that the public could see as authorized by prior laws and precedents (Rosen 2007). Since then, Roberts has often been called an “institutionalist,” albeit perhaps a “conservative institutionalist” (Gerson 2020; Rhyne 2023). Some argue that he now leads a three-member “high institutionalist” bloc of justices who leaven their ideological goals with institutional concerns (Isgur and Jens 2024).

Law professor Eric Segall disagrees. He sees Roberts’s “institutionalism” as an illusion. Segall says that “like all the Justices, the Chief is a politician who works hard to further his personal values and preferences.” Those values are “usually deeply conservative and often out-of-step with prior law” (Segall 2021, 127).

Analyzing Judges: Disciplinary Differences

What to make of these varying accounts of the chief justice? In his characterization of Roberts, as in his earlier work, Segall adopts the view of Supreme Court justices advanced by many leading political scientists (Segall 2012, 1). That stance marks Segall as an outlier among academic lawyers. Although the gap between how law professors and political scientists view courts has narrowed over time, most legal scholars still take modes of legal reasoning far more seriously than most political scientists do. Over the past 40 years, acres of law review pages have been devoted to “originalist” and “textualist” schools of jurisprudence, generally seen as favored by conservatives, versus “pragmatist” and “living constitutionalist” approaches to law, generally seen as favored by liberals. Retired Justice Stephen Breyer’s recent book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism, presents those jurisprudential alternatives as the central issue of modern judicial decision-making (Breyer 2024).

The focus of political science analyses of courts and law has long been different. Political scientists of all stripes view courts as governing institutions that are shaped by political forces and that can shape politics in turn. That is why we study them.

We vary in how we specify the relationships of courts to politics (Bleich 2018). One prominent view is held by the scholars Segall cited: the “attitudinal model” of Jeffrey Segal and Harold Spaeth, which states that Supreme Court justices mostly vote their political preferences (Segal and Spaeth 2002). Also widely influential are “strategic” models, holding that how and how far judges vote their preferences depends on a range of strategic calculations, including the prospects for winning over other judges, the chances for resistance by other branches of government, anticipated popular responses, and more (Epstein and Knight 1997; Epstein and Weinshall 2021). Strategic analysts perceive concern for consistent legal reasoning as one factor in judicial decision-making, but they present that concern as strategically motivated and as a weak restraint on ideological voting at the higher levels of the judiciary (e.g., Epstein et al. 2013; George and Epstein 1992). These scholars generally give little attention to jurisprudential theories like “originalism,” “textualism,” and “living constitutionalism,” seeing them as flexible instruments with which judges can play the tunes they prefer (Epstein et al. 2013, 2–3).

The analysis here stems from a linked but distinct third political science camp called “historical institutionalists.” We give more attention than other “public law” political scientists to the political movements that put judges on their benches; to the ideas, both political and jurisprudential, of those movements and of the judges they favor; and to how, once in place, judges make decisions that partly reflect the interests and values of their new institutional positions, as well as their desires to enable their allied movements—and the nation as a whole—to respond well to challenges they face. Understanding the political movements and ideas that carry judges into office is the “historical” part. Understanding how their offices shape their decisions is the “institutionalist” part.

Historical institutionalists do not dismiss the claims of our attitudinal and strategy-focused colleagues. Our accounts of decision-making encompass theirs but are often more complex. We presume that judicial behavior, like all human behavior, involves juggling multiple concerns. In the case of judges, these include their political preferences, which generally reflect those of the political movement, coalition, or party that put them into power, but which may include positions that are controversial within that movement or party; their desires to resolve cases in ways that help the nation function effectively, which may not always accord with their other preferences; their interests in maintaining their institution’s power—and their own; toward that end but not only toward that end, their aims to preserve the judiciary’s perceived legitimacy; and their genuine aspirations, reflecting their choice of vocation and their professional socialization, to contribute to a coherent body of legal doctrines and decisions. Striving to pursue all these goals simultaneously, they often do give more weight to what will be strategically effective than to what will be logically and legally consistent.

This portrait of judicial decision-making is neither parsimonious nor easily operationalizable (the five factors noted—policy preferences, national problem-solving, institutional power, institutional legitimacy, and legal coherence—might be modeled as a judge’s utility function, but not by me). Still, when it guides contextual research, this approach can generate nuanced accounts of the thinking of judges that capture much of their self-understandings and provide useful illumination (see, e.g., Hockett 2013 on the judicial stances in Brown v. Board of Education).

The typical focus of historical institutional scholarship, however, has not been on individual judges or their voting behavior. It is on what Mark Graber terms “constitutional politics”: the “struggles between proponents of different constitutional visions” to structure the institutions and policies of their society so that their vision will be pursued (Graber 2017, 109). Federal judges and courts figure in those struggles as participants in “complex dialogues” with “elected officials and non-governmental political actors”—but they are participants because they have been appointed by elected officials who believe the judges “broadly share their commitment to making a particular constitutional vision the law of the land” (Graber 2017, 126, 132). On this view, judges are far from apolitical.

Yet historical institutionalists believe that Chief Justice Roberts is partly right: Judges often do not act simply as dutiful servants of the political parties or coalitions that have put them into office. Rather, they act in “deliberative partnership” with those with whom they are politically aligned (Stohler 2019, 12–16). They take on controversies their movement’s elected officials wish to avoid. They offer resolutions for issues on which their allies are divided or uncertain. They decide cases in ways that reflect the values they share with those allies but also their distinctive institutional interests and norms (Staszak 2016, 326–327; Whittington 2007). Their decisions can then reconfigure politics in numerous ways. Insofar as historical institutionalists analyze individual judges, as I do here, the aim is not to pin down how frequently or how strategically the judge votes his or her preferences. It is to discern how far, and in what ways, the judge has helped to define and advance the agenda of the political forces with which the judge is allied, and with what consequences.

Historical Institutionalism and Roberts’s Constitutionalism

From this perspective, the starting point for analyzing Chief Justice Roberts is to recognize that he is both a product and a leader of the modern conservative legal movement that arose in the last third of the 20th century, chiefly in response to the Warren court and the Great Society, building on prior opposition to the New Deal and Progressivism (Hollis-Brusky 2015; Kersch 2019; Teles 2008). To understand Roberts’ goals and ideas, we must first understand the goals and ideas of the modern conservative legal movement. With that understanding in mind, we can then consider how the chief justice’s institutional position and strategic concerns have shaped how he pursues his preferred version of the movement’s goals.

Early on, John Roberts eagerly enlisted in this movement. A lifelong political and religious conservative from an affluent Catholic business family, Roberts was galvanized by Ronald Reagan’s Inaugural Address in 1981. He later said that he felt the president was speaking directly to him (Biskupic 2019, 64). It was a turning point in Roberts’s life. He had earlier thought of becoming a law professor, but as his clerkship under Justice William Rehnquist was ending, Roberts instead lobbied for a position in the new Reagan administration.

He served as a special assistant to Attorney General William French Smith until 1982, when he transferred to the White House’s Office of Legal Counsel before going into private practice in 1986. In the early 1980s, Roberts shared a “sense of mission” with other politically appointed conservative lawyers in the administration, many of them also young (Biskupic 2019, 68, 77). He wrote a mentor, Henry Friendly, that it was “an exciting time . . . when so much that has been taken for granted for so long is being seriously reconsidered” (Berman 2015). Roberts later became principal deputy solicitor general under President George H. W. Bush in 1989. He departed in 1993, after the Senate did not act on Bush’s nomination of him to the DC Circuit Court of Appeals, for another decade as a private litigator, during which time he often tried cases before the Supreme Court. President George W. Bush then appointed him to the DC Circuit Court in 2003 and to be chief justice of the U.S. Supreme Court in 2005.

Throughout, while Roberts has often invoked history, he has never identified publicly with the “originalist jurisprudence” championed by Reagan’s second attorney general, Edwin Meese. He has always used multiple modes of reasoning to define and defend what he takes to be the Constitution’s substance. Roberts has also stated that he has never formally belonged to the organizational leader of the modern conservative legal movement, the Federalist Society, though he has participated in Federalist Society events (Biskupic 2019, 129).

While in private practice, Roberts nonetheless donated time, labor, and funds to Republican candidates (Biskupic 2019, 117). When working in Republican administrations, Roberts threw himself passionately into the project of defining the best positions for modern constitutional conservatives. He faulted libertarian-leaning lawyers like Assistant Attorney General Theodore Olson for being willing to “kowtow” to liberal constitutionalists, instead of showing how to “read the Constitution as it should be read” (Biskupic 2019, 80). When Roberts completed his time in the White House Office of Legal Counsel, he wrote President Reagan that it had been “a source of great satisfaction to serve a President who appreciated the Framers’ vision of a limited Federal government of laws, not men” (Biskupic 2019, 86). He has never shown any doubt that this “Framers’ vision” is basically identical to his own.

Still, modern conservatives, like modern liberals, have never been wholly unified on the foundations and the legal and policy implications of American constitutionalism. Scholars place them in multiple camps, including Russell Kirk–style cultural traditionalists; evangelical Christians like Gary Bauer; antiregulatory, antitax libertarians like those of the Cato Institute; Straussian proponents of natural right like Charles Kesler; neoconservative hawks like Paul Wolfowitz; and more (e.g., Berkowitz 2004; O’Neill 2022). These camps’ differences are one reason that conservative judges face both the need and the opportunity to help determine what constitutional conservatism entails.

Most who see themselves as on the right have, however, now joined with varying degrees of comfort in the national conservatism movement led in the U.S. by Donald Trump (Smith and King 2024, 118–120, 270–271). Despite their differences, American conservatives have long been firmly united, and today are more united than ever, in opposition to modern progressive liberalism and most of its constitutional positions.

Since the Progressive Era, they believe, American liberals have become ever more committed to the expansion of a national administrative and regulatory bureaucratic state staffed by unelected technocrats bent on foolishly utopian social engineering. The modern American state’s bureaucratic agencies are seen as pursuing economic agendas of hyper-regulation and redistribution, funded by high taxes, which are hostile to economic growth, property rights, and market freedoms, all core constitutional values. Still worse, modern liberals’ rejections of traditionalist religious beliefs and older doctrines of natural rights, often condemned by conservatives as breeding corrosive moral relativism, have now given rise to state promotion of militant social agendas dictated by “woke” critical ideologies and identity politics. To conservatives, these policies violate constitutional guarantees of religious liberty and colorblind equal protection for all. They also see this modern left-leaning national “deep state” as having been built at the expense of constitutional federalism, which prescribes extensively self-governing states and localities, and in defiance of the Constitution’s tripartite separation of powers, into which independent administrative agencies do not fit.

Conservatives further contend that today’s progressive agenda is sustained not by the democratic support of a majority of Americans, but by fraudulent elections and by the national government’s deliberate failure to enforce immigration laws, so that millions of unauthorized arrivals who support leftist policies can enter and stay. Many, though not all, modern conservatives have come to accept that to check these features of modern governance, the Constitution must be read as affirming “unitary executive theory,” the view that the charter’s separation of powers assigns all executive functions to the president alone, thereby banning independent regulatory agencies. Most also believe that some version of originalist jurisprudence is constitutionally mandated, as well as serving as a promising means to curb the pervasive progressive features of today’s American political system (Smith and King 2024, 97–145; Watson 2023).

Though this critical account of modern American governance can be disputed in many particulars, there is more than enough truth to it to sustain a fusion of the varieties of modern conservatives into broad support for the positions that comprise modern constitutional conservatism (Berkowitz 2013, 118–120; O’Neill 2022). In his various governmental posts, including his service as chief justice, John Roberts has helped formulate just what those conservative positions should be on most of the movement’s major concerns.

Young Mister Roberts

Like his mentor and predecessor William Rehnquist, at his confirmation hearing Roberts contended that the stances he took in the Reagan and Bush administrations were the positions of his superiors, not necessarily his own (Biskupic 2019, 54, 68). But the extensive public records of Roberts’s memos, letters, and reports from those years leave no doubt that Roberts then urged the same conservative stances he would go on to promote on the Supreme Court.

His memos display a self-assured young conservative warrior. In his initial role as a special assistant to Reagan’s first attorney general, William French Smith, Roberts attacked Theodore Olson’s view that the administration should oppose bills stripping the federal courts of jurisdiction over abortion, busing, and school prayer. He also derided defenses of affirmative action, and he urged narrow readings of federal protections against gender discrimination, along with regulatory requirements for aid to persons with disabilities. Roberts denounced the latter as “legislation by the bureaucracy” (Smith et al. 2005).

Roberts sought most strenuously to prevent Congress from amending Section 2 of the Voting Rights Act (VRA) to clarify that voting systems with racially discriminatory effects were illegal, even without proof of racially discriminatory intent. Roberts wrote more than 25 memos, op-eds, and speeches for Reagan officials in an unsuccessful attempt to defeat the proposed amendment (Berman 2015). His advocacy did contribute to the inclusion in the bill of language disavowing any mandate for proportional group representation.

After he moved to the White House’s Office of Legal Counsel, Roberts wrote a memo challenging Olson’s view that Congress could not ban busing as a judicial remedy for segregation. Roberts felt Congress had power to conclude “that busing promotes segregation rather than remedying it, by precipitating white flight” (Roberts 1984b). He also repeatedly castigated feminist calls for “comparable worth,” i.e., greater pay for jobs said to be devalued because women primarily held them. Roberts fumed that it was “difficult to exaggerate the perniciousness” of this call for “central planning of the economy by judges” (Roberts 1984a).

Roberts also drafted an article entitled “The Presidency: Roles and Responsibilities,” published as the work of Ronald Reagan. It stressed the challenge that the growth of the federal government posed for the president trying to “produce a good administration” and claimed that Reagan’s Executive Order 12291 had “for the first time provided effective and coordinated management of the regulatory process.” That order authorized the Office of Management and Budget to review all regulations “to determine whether they conform to the president’s policies and to consider, to the extent possible, whether their social benefits will exceed their costs.” The article justified these broad presidential powers on the nonoriginalist idea, popularized in the Progressive Era, that “only the president can claim to speak for all the people” (Reagan 1984, 23).

When Roberts later became principal deputy solicitor general, he resumed many of the causes he had pursued in the Reagan years. He sought unsuccessfully to have the Federal Communication Commission’s policies aimed at increasing minority and women ownership of broadcast licenses declared unconstitutional, and he helped to persuade the Supreme Court to lower the bar for ending judicial desegregation decrees (Biskupic 2019, 97–101). He wrote briefs urging the overruling of Roe v. Wade (Biskupic 2019, 103–105). Though after his return to private practice he represented varied clients, Roberts also made occasional media appearances to defend these and other conservative positions (Biskupic 2019, 111–112). This track record as a dependable architect and defender of conservative constitutional stances persuaded both Presidents Bush to nominate him for federal judgeships.

Chief Justice Roberts’s Limited Institutionalism

It is possible that when he became chief justice, Roberts adopted a different view of his responsibilities, and therefore of the law, as many of his defenders and historical institutionalist theories of judging would suggest. This is true, but only to a limited degree. In his annual reports and his public statements, Roberts has tried to win resources for the federal judiciary and to defend it against charges that it is politicized. He sternly rebuked Donald Trump’s claim that there are “Obama judges and Trump judges” (Liptak 2018). He has sought to lead the justices to hand down many more unanimous or near-unanimous rulings than closely divided ones, sometimes by urging decisions on narrow grounds (Rosen 2020). According to the Martin-Quinn ideological scores for justices, Roberts’s voting record, initially quite conservative, has over time become the most moderate of the conservatives now on the court, helping to place him almost always in the court’s majority (Thomson-DeVeaux et al. 2020). Though this pattern may be a result of the court becoming more conservative, it also may reflect an “institutionalist” prioritizing of consensus over ideological goals.

But it would be wrong to conclude that Chief Justice Roberts has ceased to be at the forefront of the conservative legal movement seeking to overturn much modern progressive constitutionalism. There is not a single area of constitutional jurisprudence in which Roberts has not frequently voted to align doctrines more fully with conservative constitutionalism. On many issues, he has supported or, more often, authored opinions that have minimized or upended decades-old precedents to advance his preferred constitutional vision. That vision has always been less “libertarian means for conservative ends” and more “strong presidential powers for traditionalist Christian ends,” to paraphrase the variants in the modern legal conservative movement that Amanda Hollis-Brusky identifies in this volume.

Annual reports

Following a custom begun by Chief Justice Rehnquist, Roberts has issued year-end reports on the federal judiciary, including data on the courts but also an introductory essay for the public. Here Roberts’s institutionalism is most on display. His early reports called for increases in judicial pay and more rapid approval of judicial nominations. In 2016, he began using the reports to explain the roles of various parts of the federal judiciary, including district judges, law clerks, and the national Judicial Conference (Roberts 2016, 2018, 2021). In 2019, he urged his “judicial colleagues to continue their efforts to promote public confidence in the judiciary, both through their rulings and through civic outreach” (Roberts 2019). He has endorsed reforms to combat inappropriate workplace conduct in the courts, though he has been wary of a mandatory code of conduct for Supreme Court justices (Roberts 2011, 2018, 2021). The reports have been vehicles for Roberts to reiterate that judges honestly seek to apply the law to cases, not to advance political causes. Often beginning with folksy historical anecdotes, they present the chief justice as a dedicated civic educator and a faithful institutional custodian.

Roberts’s “liberal” institutionalist strain

Nonetheless, Roberts’s decisions over two decades show that his primary commitment is to conservative constitutionalism. In cases decided 5–4, where his vote matters most, he has favored the conservative position roughly 80 percent of the time throughout his tenure. His liberal votes have usually come in decisions where the court has been largely of one mind (Thomson-Deveaux et al. 2020). Most of the cases in which he is credited as voting “liberal” can more readily be understood as primarily institutionalist. In the first (and most famous) time Roberts voted with the court’s liberals against the court’s other conservatives, the Affordable Care Act (ACA) case, National Federation of Independent Business v. Sebelius (2012), he still sided with constitutional conservatives going back to the New Deal by insisting that the act’s mandate to purchase health care could not be authorized by the Commerce Clause, upon which most of the nation’s liberal regulatory and redistributive laws are based. He also ruled, in keeping with conservatives’ valorization of federalism, that the ACA trampled on states’ rights by requiring states to accept Medicaid expansion or else lose all Medicaid funds. By holding that the mandate could be upheld as an exercise of the taxing power, Roberts avoided a major clash with the Obama administration, thereby perhaps protecting the court from damaging political repercussions (Franklin 2012). Nonetheless, his opinion furthered core constitutional conservative causes.

Most if not all the other decisions in which Roberts has surprised observers by voting with the court’s liberals display a similar pattern. They uphold a liberal result on narrow grounds, most often deference to precedent, while leaving or creating doctrinal space to rule in keeping with constitutional conservatism in later cases. In June Medical Services v. Russo (2020), Roberts added the fifth vote for overturning a Louisiana law requiring abortion providers to have admitting privileges at a nearby hospital, but he made clear that he did so only out of adherence to a recent precedent he disliked. Roberts soon voted to limit abortion rights in Dobbs v. Jackson Women’s Health Organization (2022), while writing that he favored a less “dramatic and consequential” ruling than Justice Samuel Alito’s majority opinion, thus seeking to preserve a shred of precedent by allowing for early abortions. Characteristically, Roberts was urging a course that he saw as good for the institution’s reputation while still advancing conservative constitutional commitments (Rhyne 2023, 159–160).

In Allen v. Milligan (2023), Roberts upheld a district court ruling enjoining Alabama from using a new congressional districting plan on the grounds that the plan was not likely to survive a challenge under the “effects” test of Section 2 of the Voting Rights Act, the provision he had opposed while in the Reagan administration. Roberts knew the facts presented a textbook case for the regulatory power Reagan had felt compelled to support. He also knew the court’s precedents required Alabama to show, as it had not done, that any plan less disempowering for Black voters would have to make race an impermissibly predominant factor in its construction. The ruling did not modify the severe weakening of the Voting Rights Act that Roberts inflicted with his opinion in Shelby County v. Holder (2013).

The chief justice also rejected the sloppy procedures the Trump administration used to try to add a citizenship question to the census in Department of Commerce v. New York (2019) and to void the Deferred Action for Childhood Arrivals program in Department of Homeland Security v. Regents of the University of California (2020). But both opinions simply pressed Trump officials to be more procedurally careful, finding no constitutional barriers to their goals. Apart from Bostock v. Clayton County (2020), in which the chief justice joined Neil Gorsuch’s opinion holding that the 1964 Civil Rights Act applies to LGBTQ+ persons, most of the other cases in which Roberts has voted with the court’s liberals involve minor issues (Roeder 2018). There are no Roberts-authored opinions that have seriously impeded the main goals of modern constitutional conservatism.

Roberts’s conservative constitutionalism

There are, in contrast, many Roberts opinions that have furthered them. His rulings employ a variety of modes of interpretation, not simply originalism. When they do rely on history, they often do so selectively. And when history does not provide conservative answers, Roberts turns to other ways of reading the Constitution.

It is likely that he feels it right to do so because he and other conservatives think that to restore the limited government that they believe the Constitution intends, national administrative and regulatory agencies need to be reined in—partly by a vigilant judiciary, partly by placing agencies under the control of a powerful unitary executive. Federalism’s protections for the powers of the states must be revived, especially in matters of self-governance, such as voting rights and election laws, as well as many forms of social policy. Traditionalist religious and cultural beliefs must often be protected against militant progressive social agendas, especially in matters of gender, sexuality, and reproductive rights, and colorblind public policies must be upheld against the preferential treatment demanded by the proponents of identity politics. In contrast to the Reagan years, today’s conservatives now support restrictive immigration policies as well as robust gun rights to protect Americans against myriad perceived dangers, while their support for tough criminal justice policies has been modified due to their perception that progressives in government are weaponizing the justice system against them. On all these items, Chief Justice Roberts has been their champion.

The administrative state and judicial power

In cases culminating in West Virginia v. Environmental Protection Agency (2022), Roberts led the court to limit the authority of national regulatory agencies by elaborating the “major questions” doctrine. It holds that when an agency such as the Environmental Protection Agency (EPA), the Food and Drug Administration, or the Occupational Safety and Health Administration claims “sweeping and consequential authority” to regulate matters of great “economic and political significance,” the court must decide whether Congress has truly provided such authority, or whether the agency has inferred it from ambiguous provisions. To do so, justices must not only interpret statutes for ambiguities, they also must decide whether the agency’s regulations are highly consequential. In the West Virginia case, Roberts ruled that the Clean Air Act had not clearly authorized the EPA to seek reduction of harmful emissions by mandating “generation shifting” through regulations fostering reduced reliance on coal and greater reliance on alternative energy sources.

The result of the major questions doctrine has been a major reduction in the discretionary powers of the national administrative state, just as conservatives wish. Roberts and the court then took a giant step further in Loper Bright Enterprises v. Raimondo (2024) by overturning the 40-year-old Chevron doctrine. The court in Chevron had held that when a statute was silent or ambiguous on a regulatory issue, the courts should defer to the authorized administrative agency’s judgment if it was based on a “permissible construction of the statute,” even if that was not a construction the courts preferred. The primary rationale was that the subject-matter experts at the agency were more knowledgeable than the courts about what was technically required to fulfill the goals of a statute. Chief Justice Roberts argued for the majority that this deference violated both the 1946 Administrative Procedures Act (the statute that is in many ways the constitution of the modern American administrative state) and the judiciary’s duties. He insisted that agencies could submit their technical knowledge for consideration by courts, but that “agencies have no special competence in resolving statutory ambiguities. Courts do.” Requiring judges to defer to agencies “prevents them from judging.” Though it is too soon to know its impact, Roberts’s overturning of the Chevron doctrine in Loper Bright, like his formulation of the major question doctrine in West Virginia v. EPA, permits the courts to limit the national administrative state in most of its major functions, whenever Congress has failed to be so explicit as to provide no grounds to challenge agencies.

Executive power

As Gillian Metzger explains (this volume), even as Chief Justice Roberts has heightened judicial scrutiny of the many administrative agencies in the executive branch, he has lessened scrutiny of claims to power asserted by presidents themselves. In Seila Law LLC v. Consumer Financial Protection Bureau (2020), Roberts ruled that Congress had violated the separation of powers when it made the director of the Consumer Financial Protection Bureau removable only “for cause,” not at the will of the president. Roberts wrote that the Constitution vests the executive power—“all of it”—in “the President alone,” in keeping with unitary executive theory. Consequently, the president’s power to remove executive branch officials could be limited only in rare circumstances. Roberts argued, as he had in the Reagan years, that the Constitution justified this unique power by making “the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation.” Roberts ignored how the Constitution’s framers deliberately created the Electoral College, with members chosen through processes designated by state legislatures, as a highly indirect means of electing presidents that favors the preferences of small states, not full democracy. He instead embraced the view of the office as the democratically authorized centerpiece of American governance championed by Progressive presidents like Theodore Roosevelt and Woodrow Wilson (Skowronek 2009, 2078, 2087). Using this rationale, Roberts upheld the power of the president over that of Congress, a body also elected by the entire nation and through more directly democratic processes.

Then, despite his spat with Donald Trump over judicial independence, Roberts augmented presidential power with potentially more far-reaching consequences in Trump v. United States (2024). In a creative contribution to conservative constitutionalism, he ruled for the court that presidents have “absolute” immunity from criminal prosecution for their “core” official acts; “presumptive” immunity for official acts peripheral to their “core constitutional powers;” and no immunity for “unofficial acts committed while in office.” Evidence of presidential motives, Roberts added, cannot be used to decide whether an act is official or unofficial, nor can a president’s official acts be used as evidence in prosecutions for unofficial conduct.

Roberts based this novel framework primarily on a nonoriginalist functional argument: Without immunity, a “President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office.” Constant scrutiny for criminal acts might also mean that the independence of the executive branch would be “significantly undermined.” Roberts did not comment on the fact that U.S. presidents have operated since the nation’s founding without any such explicit immunity guarantees. Since the Constitution does provide limited immunity for members of Congress in Article I, sec. 6, it is likely that most presidents prior to Trump did not believe the Constitution gave them the immunities that Roberts judged necessary for them to function. The dissenters contended that those immunities made it more likely that presidents would engage in misconduct while in office. The opinion clearly furthered the conservative constitutional agenda of empowering the “unitary executive” against all actors that might hinder it, especially the nation’s law enforcement agencies.

Colorblind constitutionalism

Scholars have shown that the court’s rulings have swung away from the views of the median American voter toward those of the median Republican voter since President Trump made three appointments to the high bench (Jessee et al. 2022). Yet while those additions may have emboldened Chief Justice Roberts, he has authored precedent-eroding opinions advancing central themes of constitutional conservatism throughout his tenure.

Because Roberts had been a critic of busing to achieve racially integrated schools since his early days in the Reagan administration, it is not surprising that soon after becoming chief justice, he wrote for a plurality striking down school district plans aimed at achieving integrated schools in Parents Involved in Community Schools v. Seattle School District (2007). Roberts recognized that ever since Brown v. Board of Education in 1954, the court had held that the Constitution’s guarantee of equal protection required school districts that had engaged in de jure racial segregation to achieve schools that were no longer racially identifiable, through mandatory integration plans if necessary. Most people involved in public education therefore assumed that if a school district chose to assign students in ways that produced integrated schools, the courts would treat doing so not only as acceptable, but commendable. But noting that the justices had long agreed that racial classifications require strict scrutiny, Roberts argued that the goal of school racial integration could only be found compelling if it served to remedy past de jure segregation or, perhaps, was part of an effort to create student bodies that were diverse along many dimensions. Since the school districts involved in the case were not under court orders to remedy any segregation policies, and since racial integration was not part of a larger diversity program, Roberts invalidated the districts’ assignment plans, memorably concluding that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The goal of public-school integration has since become a distant memory in much of the nation.

The other shoe dropped 16 years later, when the chief justice wrote for the court’s six conservatives striking down two universities’ affirmative action policies in Students for Fair Admissions v. President and Fellows of Harvard College (2023). The schools claimed they used race only as part of policies seeking to achieve many forms of diversity. Roberts replied that the “core” commitment of the Fourteenth Amendment was to colorblind public policies. Although the amendment does not mention race, Roberts asserted that the “entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well.” So, while efforts to promote student diversity along other dimensions were permissible, efforts to achieve racial diversity were not. With these two rulings, Chief Justice Roberts overturned central pillars of the racial progressivism that had shaped constitutional decisions since the 1960s.

Federalism and voting rights

Roberts engaged in still more disputable nonoriginalist reasoning in Shelby County v. Holder (2013), a landmark victory both for the conservative precept of federalism and for Roberts’s long-standing hostility to the 1965 Voting Rights Act. There, Roberts struck down the act’s formula for subjecting jurisdictions to federal preclearance requirements for their voting rules, even though Congress had overwhelmingly voted to continue the formula after extensive hearings. Roberts did so in part by relying on his own dicta from Northwest Austin v. Holder (2009). As Eric Segall has argued, in that case Roberts expanded what he called the “fundamental principle” of “the equality of States” by selectively quoting from the original Supreme Court VRA decision, South Carolina v. Katzenbach (1966) (Segall 2021, 114). The court said then that the doctrine of the equality of states “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared” (quoted in Segall 2021, 115). Roberts omitted that qualifying phrase in Northwest Austin and later in Shelby, enabling him to claim in the latter case that the principle of the equality of states forbade subjecting some states to preclearance requirements while others, perhaps also guilty of voting infractions, were not (Shelby County v. Holder 2013, at 536).

Republican-led states responded to the Shelby decision with a surge of legislation that sought, with mixed success, to place barriers in the way of likely Democratic voters, often voters of color (King and Smith 2016). Roberts later wrote for the court in Rucho v. Common Cause (2019), holding that courts have no “judicially discernible and manageable” standards for deciding when partisan gerrymanders are unfair. By setting aside national regulatory and judicial scrutiny of state electoral practices, both decisions upheld a central concern of modern constitutional conservatism at a time when Republican leaders have openly boasted that they are restructuring electoral processes for extreme partisan advantages (Liptak 2019).

Conservative social issues

While Roberts silently voted to extend the 1964 Civil Rights Act protections to gay and trans people in the Bostock decision, he has been a far more frequent voice and vote for conservative positions on issues of sexuality, reproductive rights, and religion, pushing constitutional conservatism away from libertarianism. Again, he demurred only from the reasoning, but not the result, in the Dobbs decision overturning Roe v. Wade. He dissented angrily in Obergefell v. Hodges (2015), when the court declared that the Constitution’s equal protection and due process clauses meant that same-sex couples had the same rights to marry as heterosexual ones. He wrote for the court in Carson v. Makin (2022), holding that the Free Exercise Clause required Maine to offer tuition assistance to parents who sent their children to religious schools, if it provided tuition assistance for secular schools. That decision was part of huge transformations in religious establishment and free exercise doctrines enacted by the Roberts court. Statistical evidence shows that under Roberts, the court has not only ruled in favor of religious organizations more often than under the two preceding chief justices. It has relaxed enforcement of the Establishment Clause in ways that have chiefly benefited mainstream religious organizations, and it has strengthened Free Exercise Clause protections in cases that have largely, though not exclusively, upheld conservative Christian practices (Epstein and Posner 2022).

Law enforcement

While conservatives often say they champion strict law and order, their opposition to many forms of regulation, particularly by the federal government, means that they also find constitutional grounds to object to the enforcement of some statutes. Chief Justice Roberts fits this pattern. In addition to using the Free Exercise Clause to exempt religious believers from otherwise binding laws, he has consistently voted to use the Second Amendment to check regulatory efforts to curb gun violence in cases like District of Columbia v. Heller (2008), McDonald v. Chicago (2010), and Garland v. Cargill (2024). Recently, Roberts read the criminal liability provisions of the Sarbanes-Oxley Act narrowly in Fischer v. United States (2024). The act imposes liability on anyone who destroys “a record, document, or other object” to hinder an official proceeding, or who “otherwise obstructs, influences, or impedes an official proceeding.” Roberts ruled the statute could not be applied to Joseph Fischer, who trespassed into the Capitol on January 6, 2021, and participated in assaults on police officers and destruction of property.

Roberts has, however, penned decisions limiting a conservative bête noire, the exclusionary rule for improperly obtained evidence. Cases include Herring v. United States (2009), where the court allowed evidence obtained on the basis of an expired search warrant that had not been removed from police computer records, and Heien v. North Carolina (2014), where an officer made what the court deemed a “reasonable mistake” in believing that having only one working brake light justified a stop. And though the Roberts court has found some constitutional barriers to state laws aimed at unauthorized immigrants and to the procedures through which the national government has acted on immigration, the chief justice wrote for the court upholding the Trump administration’s so-called “Muslim ban” in Trump v. Hawaii (2018).

In sum, for all its main priorities, the modern conservative legal movement that John Roberts joined enthusiastically as a young man has many reasons to feel that he has served and guided its development with remarkable success.

Conclusion

These characterizations do not mean that the chief justice is an unbridled ideologue or hypocritical manipulator of the law. His reasoning in particular cases is certainly open to principled criticism, but it is only to be expected that John Roberts interprets the Constitution according to the precepts of the modern conservative legal movement to which he belongs. No doubt he sincerely believes those precepts express its true meaning and core values. Though his leadership has plunged the court to new depths of unpopularity, it is unlikely that the chief justice will decide that he has done anything wrong.

Yet Roberts and his fellow justices now face major and probably unexpected challenges, because in his second term, President Donald Trump has signed a massive flood of executive orders freezing appropriated funds, firing administrative personnel, banning public and private Diversity, Equity, and Inclusion initiatives, and much more, often in ways that appear to violate legislated restrictions on presidential discretion and procedural requirements. The Supreme Court will be asked to hear many lower court rulings that at this writing are largely going against the second Trump administration, but that Trump officials are not heeding, doubtless in the hope that the high court will ultimately rule in their favor. Because many of Trump’s actions aggressively advance the conservative constitutional vision of a strong unitary executive, a diminished administrative state, sharply reduced federal expenditures, colorblind public policies, and more that Chief Justice Roberts shares, he may indeed vote to uphold a number of them, even if doing so makes the judiciary appear subservient to the executive branch.

Whichever way the court goes in responding to what many legal scholars see as a constitutional crisis precipitated by Trump’s executive orders, it may well face severe and widespread criticism (Liptak 2025). Nonetheless, it is extremely unlikely that today’s deeply divided but Republican-led Congress will adopt any reform proposals of the sort the Biden Commission on the Supreme Court considered, such as term limits for justices or an expanded bench. Is the U.S. then doomed to constitutional division and disillusionment for years to come?

That fate is all too possible, but not inevitable. If in our broader politics, Americans could find more common ground, most of the justices would probably support most measures on which solid majorities agree. A strength of the attention to ideas that historical institutionalists urge is that it can aid exploration of whether and how differences in viewpoints can be bridged, accommodated, or acceptably compromised. Studies show that, while their leaders are polarized, most Americans share more values than they now realize (Levendusky 2023). The text of the Constitution as amended, particularly via the Reconstruction amendments, can also plausibly be read as authorizing many purposes on which most conservative and liberal constitutionalists agree (Smith 2024). In determining how to achieve such purposes, the Constitution’s structures require, and they can also reward, a politics conducted in a now-rare spirit of constructive compromises (Levin 2024). If Americans involved in the nation’s political contests decide that despite their differences, they share a constitutional project that they wish to succeed, today’s widespread disillusionment with their governing institutions, including the court, may once again be overcome.