Executive Summary
During his 2005 confirmation hearings, John Roberts emphasized his respect for Supreme Court precedent, affirmed that flaws in a precedent are “not enough...to justify revisiting it,” and underscored “the values of respect for precedent, evenhandedness, predictability, stability.”
Chief Justice Roberts’s frequent votes to overturn precedent, however, are wholly inconsistent with his testimony at his confirmation hearing that he would respect past Supreme Court rulings.
During his During his 14 years as Chief Justice, Roberts presided over 21 precedent-overturning cases and voted to overturn precedent in 17 of them (81%), making him the second-most frequent member of the majority in precedent-overturning cases. Only Justice Thomas has been a more frequent member of the majority in such cases (90%).
Nor is Chief Justice Roberts’s voting record in precedent-overturning cases ideologically balanced. Quite to the contrary, his track record in such cases is among the most partisan of any Supreme Court Justice in the modern era.
Fifteen of the 21 precedent-overturning cases that Roberts presided over ended in split 5-4 decisions with liberal and conservative blocs aligned against one another. In these 15 ideologically-charged cases, Roberts’s voting record lines up almost perfectly with his partisanship. He voted to overturn precedent in all 11 of the 15 cases with a conservative outcome, and in just 1 of the 4 cases with a liberal outcome (25%).
In the 15 precedent-overturning cases with partisan implications, in other words, Justice Roberts voted for a conservative outcome 14 times (93%).
Chief Justice Roberts is one of only two justices since 1946 to support 100% of decisions overturning precedent that led to conservative outcomes.
Roberts’s record in precedent-overturning cases is the second-most conservative among 37 justices who have ruled in at least 5 precedent-overturning cases since 1946. With 84% conservative votes in precedent-overturning cases, Roberts only trails Justice Alito’s 88%.
While the frequency of Roberts’s votes to overturn precedent to achieve conservative outcomes alone undermines his reputation for moderation, a qualitative assessment of these rulings reveals the extent of the impact of his ideological rulings.
Roberts has voted to overturn precedent to eviscerate a wide range of protections and rights involving campaign finance, reproductive health, workers’ rights, gun safety, affirmative action, and procedural justice, and and voted against overturning precedent when doing so would lead to enhancing rights such as marriage equality.
Roberts’ Sworn Commitment to Follow Supreme Court Precedent is Undermined by His Voting Record as Chief Justice
During his 2005 confirmation hearings for Chief Justice of the Supreme Court, John Roberts emphasized the importance of precedent in his opening statement to the Senate Judiciary Committee. According to Roberts, “Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath.” As the hearings continued, participants referenced “precedent” 273 times, oen when Senators asked Roberts whether he would vote to overturn Roe v. Wade, the Supreme Court decision affirming the right to abortion.
In fact, Roberts’s claim of respect for precedent was the key to his successful aŝempt to assuage concerns that he would overturn Roe v. Wade based on his personal views. For example, later in the hearings, Roberts reinforced his prior commitment to precedent by adding, “Another part of that humility has to do with respect for precedent that forms part of the rule of law that the judge is obligated to apply under principles of stare decisis” and “[T]here’s nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the Court faithfully under principles of stare decisis.”
Despite Roberts’s pledge to respect precedent before he was confirmed, his voting record on the Court tells a contrary story and underscores the conservatism of his jurisprudence. As Chief Justice, Roberts has presided over 21 precedent-overturning cases and voted to overturn precedent in 17 of them (81%).
Fifteen of those 21 precedent-overturning cases ended in split 5-4 decisions with liberal and conservative blocs aligned against one another. In these 15 ideologically-charged cases, Roberts’s voting record lines up almost perfectly with his partisanship. He voted to overturn precedent in all 11 of the 15 cases with a conservative outcome, and in just 1 of the 4 cases with a liberal outcome (25%). In the 15 precedent-overturning cases with partisan implications, in other words, Justice Roberts voted for a conservative outcome 14 times (93%). Chief Justice Roberts is one of only two justices since 1946 to support 100% of decisions overturning precedent that led to conservative outcomes.
In our previous report that we released with the launch of our “Roberts Is Not A Moderate” campaign, we showed that Roberts’s reputation for centrism is wholly unsupported by his jurisprudence. In that report, which is based on original data that had never previously been reported, we:
Compared the Chief Justice’s overall voting record with those of other justices, and found his record to be as conservative as those of his most partisan current and former colleagues. Roberts has voted in total of 241 5-4 split decisions, and has almost always sided with the most conservative of his colleagues in such decisions: Justice Kavanaugh (89%); Justice Alito (88%); Justice Thomas (85%); Justice Scalia (84%); and
2. Showed that Roberts’s record for moderation is based primarily on just two rulings out of the hundreds of votes he has cast as Chief Justice, one involving the Affordable Care Act and the other the Census. Even in those two ostensibly centrist rulings, he advanced a partisan agenda under the guise of reasonableness by transforming easy constitutional questions into new opportunities for compromising democracy and narrowing Congress’s ability to protect the public.
In this report, we examine Roberts’s record through the lens of Supreme Court precedent, and we present new data showing the frequency with which Roberts overturns precedent to achieve conservative ends, reinforcing our argument that Roberts’s reputation for centrism is unwarranted. While the quantitative data we offer below confirm that Roberts’s reputation is unfounded, the qualitative data point to an even more striking contrast between his reputation and his record.
By examining every precedent-overturning case that Robert has heard, we discovered that the Chief Justice has voted to overturn precedent across a wide range of hot-buŝon issues including campaign finance, reproductive health, workers’ rights, gun safety, affirmative action, and procedural justice. In split-decision cases involving these issues, Roberts voted to overturn precedent 100% of the time, and his votes always lined up with the partisan interests of the GOP. The only time Roberts votes against overturning precedent in ideologically-charged cases is when doing so would lead to a liberal outcome, for example marriage equality
Conservative Voting During the 2018 Term
After Justice Kennedy retired at the end of the 2017 Supreme Court term, observers expected that Chief Justice Roberts would take his place as the Court’s swing justice. While Kennedy had sided with liberal justices in a handful of important 5-4 decisions, the expectation that Roberts would become a swing justice was not confirmed by his subsequent voting behavior.The following graph, which shows Roberts’s alignment with colleagues in 5-4 decisions during the 2018 term, indicates that his was almost never a swing vote, and that his decisions were virtually indistinguishable from those of the other justices considered most conservative.During the 2018 term, Justice Roberts aligned with Justice Kavanaugh in 89% of 5-4 decisions, Justice Alito in 85% of such decisions, and Justice Thomas in 80%. In contrast, he aligned with Justices Ginsburg and Breyer in 15% of 5-4 decisions and with Justices Kagan and Sotomayor in 10% of such decisions. During the 2018 term, Roberts was the pivotal swing vote siding with liberal justices in just two split decisions, two fewer than Justice Gorsuch.*
*For the purposes of this report, 5-4decisions also encompass 5-3decisions since both hinge on the vote of a single justice. Justice Kavanaugh was recused in two five-vote majorities during the 2018 Supreme Court term, leaving a total of eight voting justices in these cases.
Roberts Agreement Levels in 2018 Term 5–4 Decisions
A key 5-4 decision at the end of the 2018 Supreme Court session reveals the depth of Justice Roberts’s conservativism. In Rucho v. Common Cause, a case examining partisan gerrymandering, Roberts foreclosed the possibility of federal courts intervening to rectify unconstitutionally drawn voting districts, even when they recognize that the districts are unconstitutional. His decision underscores how the language of judicial modesty can disguise a conservative result that advantages the Republican party. Roberts wrote, “Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles,’ Arizona State Legislature, 576 U. S., at___ (slip op., at 1), does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”This decision, which was joined by the Court’s other conservative justices, prompted a vociferous dissent by Justice Kagan and her liberal colleagues. Kagan wrote that, “[f]or the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”
Roberts = Kavanaugh = Alito = Thomas = Scalia
Chief Justice Roberts joined the Supreme Court in 2005 after the death of the late Chief Justice Rehnquist. Since that time, he has voted in total of 241 5-4 split decisions. In 175 of such cases, Justices Scalia, Thomas, and Alito also participated. This conservative coalition voted with Roberts in more cases than any other set of justices. In 5-4 decisions, these four justices votedtogether either in the Court’s majority or dissent 75% of the time.* By comparison, Justices Roberts, Ginsburg, Breyer, and Sotomayor have voted in 158 5-4 decisions together since Sotomayor joined the Court in 2009. These justices were on the same side of such decisions just 8% of the time.
*Figures do not add up to 100% because there are several permutations of justices in 5-4 decisions.
Roberts Has Sided with Conservatives in Most 5-4 Decisions for 13 Years
This graph reports Justice Roberts’s agreement level with each of his colleagues in 5-4 decisions since 2005.* Data indicate that throughout his career, the Chief Justice has almost always sided with the most conservative of his colleagues in such decisions: Justice Kavanaugh (89%); Justice Alito (88%); Justice Thomas (85%);Justice Scalia (84%). By contrast, his alignment frequency with liberal justices is10% or less with Justices Kagan, Ginsburg, and Stevens.
*Before she retired, Justice O’Connor voted in two 5-4 decisions alongside Roberts, but due to this small set of cases she was not included in this analysis.
Roberts’s steadfast conservatism is apparent from his individual voting record, not just his history of siding with his conservative colleagues in split decisions.
One of the most widely-used Supreme Court data resources, the United States Supreme Court Database, codes each justice’s vote as conservative or liberal based primarily on the issue at stake and the partisan underpinnings of the case.* A vote supporting a person convicted or accused of a crime in a criminal case, for instance, is treated as liberal while a vote supporting the government is coded as conservative.
Although this reductionist method of coding sacrifices some nuance, it provides a straightforward and consistent way to compare the justices’ votes across time.
*Votes that do not fit with in the database’s framework are not coded.
Opinion Assignments Favor Conservative Justices
One of the Chief Justice’s main responsibilities is to assign the majority opinion author in cases in which the Chief is a member of the majority. If Roberts is not in the majority, then the most senior justice in the majority assigns the opinion. This assignment power has provided another means for Roberts to solidify the Court’s conservative jurisprudence, as he usually delegates assignments to himself and to his most conservative colleagues. Occasionally, he assigns 5-4majority opinions to liberal justices to entice them to side with a conservative majority when one of the more conservative justices is expected to vote in dissent.*
*This theory of strategic opinion assignment is examined in detail in Paul Wahlbeck, "Strategy and Constraints on Supreme Court Opinion Assignment," University of Pennsylvania Law Review (2006)
Who is Writing Supreme Court Opinions Under Chief Justice Roberts? Answer: Conservatives
Roberts assigned opinions in 149 5-4 decisions between 2005 and the end of the 2018 term, equating to just over 64% of such opinions. He almost always assigns decisions to himself and to the Court’s most conservative members, rarely assigning them to liberals.
Breadth of Conservative Jurisprudence
Across a range of critical issues, Chief Justice Roberts has set aside precedent to narrow or undermine individual rights, erode the ability of citizens to participate in democracy, and advance corporate power. He has a history of authoring some of the most partisan 5-4 decisions on the modern Supreme Court. Majorities that Chief Justice Roberts has joined appear, on occasion, to disregard factual records. In granting the Trump administration’s request for emergency relief from preliminary injunctions prohibiting the military from firing transgender service members, for example, a 5-4majority agreed that inclusive policy posed “too great a risk to military effectiveness and lethality,” overlooking that all five Service Chiefs testified that inclusive policy had not compromised readiness, and that more than two years after the lifting of the transgender ban,the administration was unable to identify any evidence that inclusion had harmed readiness.*
*Donald C. Arthur, Gale Pollock, Alan M. Steinman, Nathaniel Frank, Diane H. Mazur, and Aaron Belkin, “DoD's Rationale for Reinstating the Transgender Ban is Contradicted by Evidence,” San Francisco, CA: Palm Center(2018)
His Partisan Record Included the Following Cases
What some described as Roberts’s thoughtful preservation of the role of the Court misses that the Chief Justice reinforced a dangerous precedent by inviting the administration to reverse-engineer a justification for discrimination after its original pretext was exposed as constitutionally unacceptable. In addition, reporters who praised Roberts’s ruling for its moderation missed its practical implications and discounted that, as a legal and constitutional matter, the case should not have been a close call given clear evidence of the administration’s partisan and racial motive for adding a citizenship question to the Census. The democracy-compromising ramifications of Roberts’s decision quickly became apparent when the Trump Administration directed the Census Bureau to provide states with information about "citizenship voting age population." These data will enable states to draw districts that advantage white Republican voters, the discriminatory rationale that Justice Roberts failed to reject.
This was not the first time that observers mischaracterized one of Roberts’s partisan rulings as centrist. In 2012, Chief Justice Roberts sided with liberals in a 5-4 decision narrowly upholding the constitutionality of the Affordable Care Act’s individual mandate in National Federation of Independent Business v. Sebelius. Those who praised Roberts for his centrism, however, (1) overlooked that he decided what should have been a straightforward case in an unnecessarily narrow way that reversed clear and long-standing precedent, curtailing Congress’s ability to address national problems through its Commerce Clause powers; (2) effectively rewrote Medicaid expansion in a way not intended by Congress, enabling Republican governors to deny health insurance to millions of people; and (3) left the door open for continued (and current) partisan court challenges to the Affordable Care Act. Despite his ostensible commitment to judicial restraint, Chief Justice Roberts curtailed the signature initiative of a President elected with a mandate to reform U.S. health insurance by limiting a statute that solid House and Senate majorities had approved. By any reasonable standard, Sebelius was not a moderate ruling.
While Roberts’s decisions in these two cases have been widely praised for their centrism and have sustained his reputation as a moderate, observers have ignored the partisan implications of these two supposedly middle-of-the-road rulings. To the extent that the two decisions can be characterized, in part, as moderate, both transformed clear-cut constitutional and legal questions into opportunities for narrow rulings with partisan practical and doctrinal implications. They appear to be centrist only in the context of the radicalism of the rest of Roberts’s voting record and that of his conservative colleagues
One of the Most Conservative Justices
Chief Justice Roberts has voted repeatedly to compromise the rights of minority and traditionally disadvantaged groups while advancing corporate power. He has a history of authoring some of the most partisan 5-4 decisions on the modern Supreme Court, often in pursuit of limiting civil and human rights.In his 5-4 majority opinion in Shelby County v. Holder (2013), the case that dismantled the Voting Rights Act, Roberts ignored the constitutional authority of Congress to enforce the guarantees of the Fourteenth and Fifteenth Amendments, substituting his own policy judgment for the findings of Congress. Despite a factual record that indicated that disabling the Act would allow voter suppression, he wrote that, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
His dissents in 5-4 decisions have been no less forceful. In his minority opinion in Obergefell v. Hodges (2015), a case that upheld the constitutionality of marriage equality, Roberts stated, “Today...the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage...for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.”
While the contrast between Roberts’s positions in Shelby County and Obergefell is stark, both 5-4 decisions illustrate the key finding that emerges from an analysis of original data, never before reported, about his voting record: Chief Justice John Roberts’s reputation for moderation is not warranted by the evidence. While Roberts’s personal style is thoughtful and understated, the data we analyze in this report indicate that his jurisprudence is staunchly partisan.His record in the Court’s closest decisions, those decided by one vote, present a clear picture of an arch-conservative intent on solidifying a partisan majority on the bench.
Even in the two decisions that sustain his reputation for centrism, Roberts has advanced a partisan agenda under the guise of reasonableness by transforming straightforward constitutional questions into opportunities for limiting rights. His votes and opinions reveal that Roberts is neither a moderate nor a swing vote.Since joining the Court in 2005, he has been an arch-conservative jurist whose voting record aligns with the most partisan conservative justices on the modern Supreme Court.
