This year the U.S. Supreme Court “really became [Chief Justice John] Roberts’ court,” Ilya Shapiro believes. Roberts, appointed by President George W. Bush, “was in the majority more than anyone.”
Contrary to criticism from some conservatives, Roberts’ functioned overall as the court’s anchor, not weathervane, Shapiro told about 200 participants in a July 15 webinar hosted by the Jewish Policy Center. The result in the 2019-2020 terms was “by no means liberal.” In fact, he and Justice Brett Kavanaugh, appointed by President Donald Trump, were the two members most likely to agree, Shapiro said.
Director of the CATO Institute’s Robert A. Levy Center for Constitutional Studies, Shapiro noted that, due in part to Covid-19 pandemic closures, the high court issued a “record low” number of signed opinions in its 2019-2020 term, 53. Roberts “was in the majority 97 percent of the time.”
But unlike predecessors Anthony Kennedy and William Brennan who most frequently were in Supreme Court majorities, the chief justice “isn’t a true swing vote.” Instead, it is more useful to think of him “as an anchor” among justices, said Shapiro, a JPC advisory board member.
In a decision decried by some conservatives, Bostock v. Clayton County (Georgia), it was Justice Neil Gorsuch, appointed by President Trump, not Roberts who drew criticism from the right, who wrote the majority opinion. The court’s 6-3 ruling in Bostock said “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Title VII of the 1964 Civil Rights Act banned employment discrimination on the grounds of biological sexual identity.
But Gorsuch also wrote a “most protective interpretation of religious liberty” in cases regarding the “ministerial exception” from federal employment and health care mandates on religious conscience grounds. This would protect many employees, not just clergy members, in houses of worship, religious schools and affiliated agencies, and nuns in the order of the Little Sisters of the Poor. The Sisters have long fought Obamacare requirements through the Department of Health and Human Services to pay for birth control and abortion coverage as part of their medical insurance, Shapiro pointed out.
Louisiana Abortion Case
In an abortion rights case, Roberts and the court’s four members nominated by Democratic presidents struck down a Louisiana law that required doctors who perform abortions to have admitting privileges at a nearby hospital. Four years earlier, Roberts was in the minority in a similar case from Texas.
This year, in ruling to uphold the precedent of the Texas case from which he had dissented, Roberts supported the legal principle of stare decisis, Shapiro said. This asserts that decisions should follow previous rulings in cases with similar facts. “We’ll see what happens in the next such case,” Shapiro added, suggesting the Louisiana ruling did not mean the Supreme Court would not restrict abortion on demand in future rulings.
Roberts, joined by the court’s four Democratic nominees, wrote the majority opinion in a 5-4 decision rejecting the Trump administration’s termination of Deferred Action on Childhood Arrivals. DACA is an Obama administration procedure allowing migrants who came to the United States illegally as children to remain. That opinion did not determine DACA’s legality but rather said the administration failed to justify properly its decision to end the program.
In dissent, Justice Clarence Thomas called the majority opinion “an effort to avoid a politically controversial but legally correct decision.” He said that gave “the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches.”
But according to Shapiro, Roberts’ DACA majority opinion was similar to his view a year ago denying the Trump administration’s desire to add a citizenship question to the census. The chief justice in both case was telling the White House “you didn’t do it the right way this time” but maybe the administration can accomplish its regulatory objectives by providing judicially acceptable justifications in the future, Shapiro said.
Though this “was supposed to be a big Second Amendment [gun rights] term,” he noted that the court took up only one such case. This was a complaint against New York City over an ordinance forbidding owners of lawful firearms to transport them outside municipal limits, even to a range or second home. When the city and state, fearing a ruling against them, eased the regulation, the Supreme Court ruled the case moot. It also avoided taking up other gun rights petitions, Shapiro said.
Who Gets Oklahoma?
In the wake of police killings of African Americans, including George Floyd in Minneapolis and Rashad Brooks in Atlanta, justices sidestepped challenges to the “qualified immunity” doctrine, he said. Qualified immunity protects not only law enforcement officers but also “all other government officials” against suits alleging personal liability for actions considered reasonable when performed while on duty, Shapiro pointed out.
In yet another 5-4 opinion, also written by Justice Gorsuch and the four liberal justices, the Supreme Court ruled in McGirt v. Oklahoma that much of eastern Oklahoma, including Tulsa, remains land subject to Muscogee-Creek tribal jurisdiction under agreements with the federal government dating to the late 1800s. Gorsuch wrote that “the federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. … But Congress has never withdrawn the promised reservation.”
The tribe had challenged the state of Oklahoma’s authority to prosecute a federal crime committed by a tribal member on an Indian reservation.
Roberts and three conservative justices, including Thomas, dissented, Thomas filing his own opinion.
Shapiro said the decision did not shrink the state of Oklahoma by 50 percent, but it might complicate payment of taxes, organization of school districts, oil and gas leases and more. He noted there “currently is a three-way negotiation” underway among Oklahoma, the Muscogee-Creek tribe and federal government.
U.S. attorneys in Oklahoma issued a statement after the ruling saying they would work together with state, local, and federal law enforcement under the new decision. Oklahoma, the Muscogee-Creek, Cherokee, Chickasaw, Choctaw and Seminole nations said they had made progress toward an agreement to present to Congress and the Justice Department to resolve jurisdictional issues raised by the Supreme Court’s McGirt v. Oklahoma ruling.
Shapiro’s new book, Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court is set for September release. The Supreme Court, its membership and rulings have become so contentious in recent decades in part because Congress often has failed to legislate, the executive branch overreached via regulations, so the center of political power has shifted toward the judicial branch, Shapiro said. National controversies, which should have been determined in the House and Senate, end up at the high court.
The Supreme Court has become such a political focus that should Justice Ruth Bader Ginsburg’s recent hospitalization lead to a vacancy before November’s presidential election, “there’ll be rioting in the streets,” Shapiro forecast.
Ilya Shapiro is a member of the JPC Board of Fellows and the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review. He is the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. Shapiro also served as special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues.