Opinion | The Roberts Court is Dying. Here’s What Comes Next.

The obituaries are already being written. Steamrolled by five other conservatives, Chief Justice John Roberts was unable to shape the Supreme Court’s decision to let Texas flagrantly ignore the court’s abortion precedent. This is the end of the Roberts Court, we’re told, as the Chief Justice’s cautious approach to judging gives way to a more robustly conservative activism.

But obituaries can be premature: P.T. Barnum’s, for example, appeared in the New York Evening Sun some two weeks before he died. Like Barnum, the chief justice’s influence is ebbing, but it isn’t moribund. How long it will last, however, may not be within his control. Rather, it depends on how aggressively state and national Republicans try to press their political advantage — especially at election time.

And while the chief justice hasn’t fully lost his hold on the court, what comes next is quickly coming into view. The post-Roberts Court is likely to be unfettered by legalistic norms and eager to advance changes to the law that both embed conservative policy goals and tilt the election system toward the GOP. It’s a combination that poses a real threat to American democracy.

Signs of Roberts’ waning influence abound. In the Supreme Court term that ended last July, the (more conservative) Justice Brett Kavanaugh was in the majority in 97 percent of all cases, and 95 percent of divided cases; the chief managed only 91 percent and 84 percent respectively. Kavanaugh also cast the decisive vote in the denial of a nationwide injunction against the Center for Disease Control’s eviction moratorium in July. Robert’s vote to let stand California’s and New York’s Covid regulations as applied to churches were in dissents. He was again outvoted by his five more conservative peers, including Kavanaugh.

But we also shouldn’t overstate the distance between the chief justice’s preferred outcomes and those of his conservative colleagues. Roberts has already made clear his strong antipathy to abortion rights. In a pivotal 2020 case, he voted to invalidate a Louisiana law imposing punishing burdens on abortion providers, but at the same time, made it abundantly clear that state legislatures had “wide discretion” to regulate abortion without second-guessing by the federal courts. His language was widely seen as an invite to gut Roe v. Wade indirectly, and the court will have that chance when it begins considering a Mississippi abortion ban in the fall.

The chief is also at the forefront of many other rightward shifts in the caselaw. Last year, he penned an opinion dramatically restricting states’ ability to withhold funding from religious schools. A year before that, he wrote a judgment unleashing unconstrained partisan gerrymandered. And in 2012, he wrote the decision invalidating a key component of the Voting Rights Act — opening the gates to recent restrictive voting measures in 17 states (and counting).

It’s thus not the direction of legal change, but its velocity and style, that divides Roberts from his conservative colleagues. The chief, it seems, holds legal protocols and rituals in far higher esteem. It matters to him that that court is widely perceived as acting in a deliberative and legalistic way, according to the forms and rules set down by law and with some regard for existing judgments — even those with which he disagrees. Back in 2012, he angered conservative allies by upholding Obamacare but likely helped protect the court’s credibility with the public. I think of him as a legalist — someone for whom the forms and niceties of legal process matter somewhat — although rarely enough to stop him from reaching preferred conservative outcomes.

Hence, when Roberts has cast a decisive vote at odds with his conservative colleagues, in cases involving the DACA immigration program and the 2020 census, he has explained his objections in terms of process, not outcome. He carefully left open pathways for government actors to reach a conservative outcome — if they observed the forms and niceties of legal process.

Legitimacy, then, was for Roberts a means to an end — conservative governance. Even as he has deftly wielded institutional gravitas to stave off hostile action by Congress, he also gave Republicans tools to entrench themselves by defanging the Voting Rights Act, upholding voter ID laws and impeding reform of redistricting.

The post-Roberts Court will likely be even more aggressive in shoring up conservative governance. But it will advance that end by entrenching its partisan allies beyond electoral challenge while foregoing Roberts’ pursuit of a legalist legitimacy.

The largest differences between the chief and the other conservative justices will arise in the so-called “shadow docket” of matters decided without full briefing or oral argument. Precisely because these matters unfold on a compressed timescale, without public deliberation or full briefing, they can be an affront to the chief’s legalist impulses. Plainly, that is not as much a worry for the other conservatives — at least when they like the ultimate, bottom-line result enough.

When the same legal question arises on both the shadow docket and the court’s plenary, merits docket, the chief is often able to wrestle out a compromise on the latter, if not the former. For example, the chief dissented from the results his conservative colleagues reached in religious liberty challenges to New York and California Covid rules, both on the shadow docket. But when the same basic First-Amendment question was presented in a subsequent religious liberty case concerning Philadelphia’s foster care program on the merits docket, he was able to persuade several to join him in a narrower decision — albeit one that lays a foundation for a more aggressive religious right to discriminate.

In the vast majority of matters, then, the gap between the chief and his conservative colleagues won’t make a difference to the ultimate resting place of constitutional law. Expect, therefore, conservative rulings in all of the blockbuster cases this term on abortion, the Second Amendment, religious liberty and state secrets — but also expect that Roberts will exercise at times a moderating influence at key moments on the merits docket. The judicial tide will run red, but not always deep scarlet.

The chief justice’s influence will palpably and rapidly wane, however, if GOP-led states and other groups follow Texas’ example of spurning the niceties of precedent, and rush to install aggressively conservative outcomes that the chief would prefer to reach more slowly. All it takes to pry open the chief’s fragile grip on the court, and to fully bury “the Roberts Courts,” are sufficiently polarized state legislatures and activist allies too impatient to let the slower, more legalistic process that Roberts would follow play out.

As a result, perhaps the most important zone of coming conflict on the bench, and the most likely to further sap the chief’s leadership, is the inevitable swell of election-related cases that will hit next year in the run-up to the 2022 and 2024 elections.

It is easy to focus on the court’s decision to not intervene during the 2020 race, and assume that the post-Roberts Court would not accept an inevitably partisan invitation to stymie a democratic vote-count. But this would be to forget that just days before the November election, Justice Samuel Alito — joined by Justices Neil Gorsuch and Clarence Thomas — proposed just that in Pennsylvania. Had the ballot counts been slightly closer, it is more than conceivable that a ‘shadow docket’ order stopping Pennsylvania election workers in their tracks would have been issued.

The legal basis for their threat — the idea that Article I, Section IV and Article II, Section 1 of the Constitution gives state legislatures a monopoly over all things electoral to the exclusion of state courts and election boards — featured heavily in the Trump campaign’s arguments for nullifying the 2020 result. Rooted in one of the opinions of the infamous Bush v. Gore case, this argument provides open-ended license to the Supreme Court to revoke actions by the state officials and judges who inevitably end up implementing an election on the ground on the ground that the state legislature would have done otherwise. And it is perfectly tuned to shadow docket emergency-motions.

Expect, therefore, the “independent legislature” doctrine and other creative readings of the Constitution to flourish on the shadow docket as election season rolls around. It is these cases — where the court most risks becoming a naked implement of partisan entrenchment — that will truly test Roberts’ leadership. Like Barnum, the chief isn’t dead yet. And, at least for the sake of American democracy, we should all hope that he has a little more life left in him still.