A Question for the Chief: Institutionalism or Constitutionalism?

With Justice Brett Kavanaugh assuming his position as a United States Supreme Court justice and replacing his former boss, the moderate swing justice Anthony Kennedy, it is expected that the Supreme Court will move in a more conservative direction. There has been commentary  lately, however, that this may not be the case, at least not right away. Much of this is focusing on Chief Justice John Roberts in how he may now move to more of a centrist position in light of the departure of Justice Kennedy. While there may be some truth to this, we should consider his history on the court prior to the departure and some of his decisions since the departure to assess a reported drift to the center. Would his recent jurisprudence place him outside his Constitutionalist roots or is it in fact in accordance with his prior history as a judicial minimalist? Furthermore, is he taking more a tentative approach with some of his procedural punts on hot-button cases to allow the nation to further heal from the bloody Kavanaugh hearings before ultimately following rank with fellow conservative jurists?

Here is brief commentary on some notable cases in assessing the validity of the centrist transition argument.


NFIB v. Sebelius (Obamacare Case- 2012)

This case was prior to Kennedy’s departure, but it marks the first significant break from expected conservative jurisprudence. It has been reported that Roberts changed his vote from the initial conference vote in order to uphold the Affordable Care Act. He largely relied on the Taxing and Spending Clause to uphold the law, because he established that it failed under a Commerce Clause analysis. The “penalty” provision in the law for failure to purchase health insurance could be properly categorized as a tax according to Roberts.

King v. Burwell (Obamacare 2 Case- 2015)

The issue presented here offered another look at the Affordable Care Act. The challenge was rooted in crudely crafted language in the Affordable Care Act that the petitioners argued narrowly stated tax credits were only to be made available through “State” established exchanges rather than federal established exchanges. If this was found, the entire Affordable Care Act could be threatened as the IRS would have exceeded the authority granted to it by Congress. Ultimately, Roberts, in his majority opinion wrote that the credits were available in both exchanges and emphasized that the reading of “State” within the context of the Act in of itself would lead to that conclusion despite the ambiguous language. This opinion reaffirmed the ACA and arguably put Roberts in opposition with his judicial minimalism philosophy. As Justice Scalia noted in dissent, this was a Supreme Court re-writing of the statute to expand the definition of the word “State” as a means to save the law. The lack of specificity did not warrant further Supreme Court intervention to save its flaws. It was up to Congress to make amends not the role of the Court.


Asylum Ban Case (2018)

This case concerns the Trump administration’s order on asylum policy. The policy would have temporarily barred illegal immigrants who entered the U.S. from seeking asylum outside ports of official entry. The lower federal district court ruled that this was an unconstitutional policy that exceeded the president’s authority. The Chief Justice provided the fifth vote and sided with the liberal justices to keep the district court’s ruling in place. The ruling kept the policy blocked during the government’s pending litigation and appeal to the 9th Circuit from the district court.  The government had sought a Supreme Court emergency order allowing the policy to be in effect during the litigation.

This may not be determinative, however, on Roberts’ overall philosophy. The case may be decided on the merits at a later time, so some of the criticism should be delayed. This case may highlight a deference to institutionalism for the present societal landscape and should not be overly read into unless the same conclusion is reached following full argument.

 Louisiana Abortion Provider Case (2019)

This is more of a procedural case that considers a Louisiana law that would require doctors to have admitting privileges at a nearby hospital in order to perform abortions. A federal district judge blocked the law from going into effect because it created an undue burden on woman who sought abortions. Similar to the immigration asylum matter, this case has reached the Supreme Court for emergency intervention and Roberts voted to uphold the block on the law until the case is fully briefed and argued.

The 4 conservative jurists dissented, however, and would have allowed the law to go into effect up until the matter was fully ripe with proper briefing and argument. Some have said that Roberts was a procedural vote and on the merits he will ultimately side with conservatives when it is fully briefed and argued, while others believe it is a sign that Roberts is showing reluctance towards allowing the abortion cases to proceed at an accelerated pace out of concerns for institutionalism.

Although I disagree with Roberts here and this case has gotten a lot of attention, his intention is still unclear. Similar to the immigration case, there will be more consideration for the institutionalism argument and cause for concern if Roberts’ goes against the 4 conservatives on the merits of the matter after its fully briefed and argued.

 Institutionalism vs. Constitutionalism

If we assume that this drift is in fact occurring or at the very least ask the question why the court is not moving in a more conservative direction fast enough, we need to consider both the institutionalist and constitutionalist view.

In terms of institutionalism, with the charged Kavanaugh hearings, the Supreme Court is at the center of society’s attention more than ever, Roberts may in fact be looking to protect the role and respect for the Supreme Court in society. For example, a quick monumental decision to take a case aimed at the heart of Roe v. Wade could create civil unrest based on the current media environment and charged political atmosphere in the nation. Now that this case has become embedded into the social fabric of the nation, it has become a very divisive issue.

Other threatening examples are serious proposals being advocated by presidential candidates to add to the number of Supreme Court justices, FDR court packing style, should there be a rash of unpopular Constitutionalist decisions. Such a move would place the Supreme Court in greater crosshairs, thus further adding pressure to the Court.  Finally, there have also been renewed radical calls for impeachment of Supreme Court justices. Will this be the new frontier of the left if the court trends rapidly towards Constitutionalism? All of these things are pressure points on the Chief Justice and real fears that he likely considers in addition to fulfilling his duties primarily as an interpreter of Constitutional law leading the highest court in the land.

In moving into the institutionalist direction from a position of fear, many cons, however, also exist. It’s not the responsibility of the Court to fall in line with public opinion or consider as part of its decision-making process, societal consequences. While making an unpopular decision always carries risks with negative press and the subject of rigorous attacks it is still shows a proven dedication to principle. History also tells us that the American people do not have a history of supporting court-packing, see FDR. There comes a point where a certain trust must exist that the American people will always respect the force of the institution even if it leads to disagreements. The judiciary has one primary function, interpret the Constitution. Caving in to outside forces demonstrates coming from a position of weakness and fear rather than appreciating the proud task of being a guardian of the Constitution. It hollows the difficult practice of interpreting the Constitution and reduces judges to no more than a function of a political actor wearing a robe.


Overall, Chief Justice Roberts tends to have embraced more of an institutionalist position with some prior decisions such as the Obamacare litigation and most recently the Louisiana abortion and asylum orders. I do not believe, however, he has committed to a centrist role entirely, but, this view is subject to change based upon the development of these cases and the issues the Court will continue to face in the near future.

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