As the U.S. Supreme Court's term moves into its final weeks, the challenges for a Chief Justice who insists the institution is not a partisan one come into stark relief. Awaiting decision is a raft of cases with political overtones and potential ramifications, including the legal battle over subpoenas for President Donald Trump's financial records.
But in Monday's historic ruling in favor of federal workplace protections for LGBT workers, Chief Justice John Roberts Jr. showed his ability to navigate strategically those challenges—when he desires to do so.
Most of the credit for the 6-3 decision that included sexual orientation and gender identity under Title VII's ban on workplace discrimination "because of sex" is given to the majority opinion's author—Trump appointee Neil Gorsuch. Known as an "uncompromising textualist," Gorsuch found in the plain words of Title VII the answer to its scope.
"When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest," Gorsuch wrote in a lengthy, detailed opinion. "Only the written word is the law, and all persons are entitled to its benefit."
During oral argument in October, Gorsuch's comments indicated he was leaning in favor of the arguments made by lawyers for the LGBT plaintiffs. Roberts's inclination, as usual, was more difficult to discern. In the end, he joined Gorsuch and the Court's four liberal justices to form a cross-ideological majority that defied partisan criticisms.
When Roberts is in the majority in a decision, he has the power to decide who will write the opinion. It is one of the few powers that a Chief Justice, considered "first among equals," has. The Chief Justice may decide to write the opinion or assign it to another justice and there may be several reasons for assigning it to another justice. Roberts may decide simply to assign it to the Justice who will write the best articulation of the majority justices' views. He may assign it to a Justice who was wavering in the majority in hopes of keeping that Justice, or to a Justice who will write a narrow instead of a broad opinion.
And, the Chief Justice may assign the opinion to a Justice who would not be expected, because of ideology, to write the opinion. We don't know why Roberts assigned the LGBT opinion to Gorsuch. But he assigned it to the conservative, Trump appointee Gorsuch who wrote an opinion that soundly rejected the Trump Administration's position and the position held by numerous conservative and religious friend-of-the-court organizations in the LGBT-Title VII case. And Roberts made that non-partisan majority on a controversial social issue stronger by joining Gorsuch.
That Roberts is sensitive to the public's perception of the Court in this hyper-partisan, divisive era has been reflected in his relatively rare public remarks. In October 2018, in remarks at the University of Minnesota, he indirectly referred to the contentious Senate confirmation hearings for Justice Brett Kavanaugh.
“We do not sit on opposite sides of an aisle,” Roberts said. “We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation. And I want to assure all of you that we will continue to do that to the best of our abilities whether times are calm or contentious.”
A month later, President Trump's description of a judge who ruled against his administration's asylum policy as "an Obama judge" apparently touched a nerve. Roberts countered: "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."
Several Justices have told me over the years that there is no "horse-trading" in deciding Supreme Court cases. But that doesn't mean there is no strategic thinking.
Before Justice Antonin Scalia's death in February 2016, the court had a 5-4 conservative majority. After Scalia's death, the Justices were evenly divided by ideology—four conservatives, four liberals—and a large number of controversial cases created the potential for 4-4 ties.
A core group of four justices—Roberts, Anthony Kennedy, Stephen Breyer, and Elena Kagan—worked together to achieve consensus through narrow decisions and were largely successful. Kennedy is no longer on the Court and has been succeeded by Kavanaugh who, along with Gorsuch, is more conservative. Consensus may be harder to achieve. As an aside, Gorsuch is a former Kennedy clerk and Kennedy led the Court in a series of rulings expanding the rights of the LGBT community, including the right to same-sex marriage.
It is too early to know whether the LGBT ruling is the beginning of another successful effort by Roberts to forge consensus in rulings that keep the Court from becoming mired in the cynicism in which the public now holds the political branches of government.
We do know the challenge is great. Besides the Trump subpoena cases, the Justices have yet to rule on the always controversial issue of abortion in a Louisiana case, the Trump Administration's plan to end the Deferred Action for Childhood Arrivals (Dreamers) program, public funding of religious schools, the fate of the Consumer Financial Protection Bureau, and state actions against "faithless" presidential electors who fail to vote for the candidates they vowed to support in the Electoral College.
The Justices usually wrap up the term by the end of June. That traditionally happens because arguments end in April which gives the Justices May and June to draft their opinions. Telephonic arguments in May because of the coronavirus may push the term's end into July. Anticipation is building.
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.