No, Roberts hasn’t gone rogue

Conservatives in a tizzy over Chief Justice John Roberts Jr. should calm down. Roberts is no closet liberal; he’s a savvy operator at the helm of a decidedly conservative court.

Granted, Roberts’ recent alignments with the four liberal justices are unnerving for conservatives, to say the least. He wrote the opinion invalidating President Donald Trump’s move to revoke the Obamaera order protecting “dreamers,” who were brought to the United States as children, from deportation. Along with Justice Neil Gorsuch, he said gay and transgender employees are covered by federal anti-discrimination law. And, perhaps most alarming for conservatives, he provided the fifth vote to overturn a Louisiana abortion law.

Has Roberts gone dangerously rogue, another conservative disappointment along the lines of the court’s previous swing justice, Anthony M. Kennedy?

If only — although Kennedy, with notable exceptions, was a reliably conservative justice for three decades.

Roberts has famously, and somewhat facilely, likened the judge’s role to that of umpire, objectively calling balls and strikes. Yet a few surprising calls shouldn’t obscure his overall sense of the strike zone. And to switch sports metaphors, he is moving the ball steadily down the constitutional field, toward the conservative end zone. Of the dozen 5-to-4 cases decided by the Supreme Court this term, Roberts is the only justice to have been in the majority each time. He sided with the liberals just twice.

It’s worth noting that Roberts’ episodic deviations from conservative orthodoxy have tended to involve laws and regulations — cases where Congress or the executive branch can fix anything they think the court got wrong — more often than constitutional interpretation, where the court gets the last say.

Take the final day of last term.

Roberts cast a deciding vote with the liberals to block the administration from adding a citizenship question to the census. The ruling didn’t say that question was impermissible, just that it had been tacked on in a shoddy, dishonest way. Roberts then sided with fellow conservatives — indeed, he wrote the opinion — to say the court would not review claims of partisan gerrymandering. As a practical and doctrinal matter, the gerrymandering case is far more consequential: removing the judiciary from ensuring that votes actually count.

This term contains echoes of the last. Roberts’ vote with the court’s liberals in the dreamers case involved another sloppy and disingenuous executive action by the Trump administration. The immediate stakes for affected individuals were enormous, but the longer-term legal consequences were not: Administrations present and future were simply admonished they have to follow the rules to change the rules.

The employment discrimination case is similar, this time involving legislation. The court’s ruling that discrimination because of sex includes bias against gay and transgender employees has a huge practical impact, in employment cases and elsewhere, because so many federal laws contain similar wording. But Congress remains free to undo the decision, unlikely as that is. And the majority opinion, by Gorsuch, applies a conservative legal approach — focusing on the words of the statute, not the intent of its drafters — to reach the liberal policy result.

Balanced against these statutory and regulatory cases, conservatives — with Roberts’ help — achieved significant wins this term on constitutional issues. In a major separation-of-powers case with implications for the constitutional status of other independent agencies, Roberts ruled that, for the Consumer Financial Protection Bureau to pass constitutional muster, the president must be allowed to remove the director at will.

Roberts also wrote the opinion for the conservative majority in an important religious freedom case, holding that states that choose to subsidize private schools cannot exclude religious institutions. Consider how blurred the line between church and state has become as conservatives have gained power: The court has moved from allowing states to aid religious schools to requiring them to do so if they fund other private schools.

Then there is abortion. Four years ago, Roberts dissented when the majority, with Kennedy providing the fifth vote, struck down a Texas law requiring that abortion providers obtain admitting privileges at nearby hospitals. On Monday, in a case involving an essentially identical Louisiana law, Roberts for the first time voted to invalidate a restriction on abortion.

Prior to the abortion ruling, Roberts’ greatest sin, in conservative eyes, was his 2012 vote to save the Affordable Care Act. In both situations, Roberts was surely motivated by institutional concerns. On health care, a vote to strike down such a landmark law along party lines would undermine Roberts’ case for judges as neutral umpires, citing the importance of sticking with precedent. On abortion, his insistence that the judiciary is not composed of “Obama judges” or “Trump judges” falls short if the only explanation for different outcomes is the arrival of a new justice.

But even as Roberts maneuvered to uphold the Affordable Care Act, he did so in a way that moved the law in a conservative direction, cutting back the scope of Congress’ power under the Commerce Clause and its ability to threaten states with losing federal funding.

Similarly, in the abortion case, even as Roberts cast his first ever vote to overturn an abortion law, he endorsed a test that may make it easier for abortion restrictions to pass constitutional scrutiny in the future.

Make no mistake: This is a justice in for the long haul, and steering in a conservative direction.