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Supreme Court Chief Justice John Roberts continues to position himself as the high court’s swing vote — siding with both his conservative and liberal colleagues in close decisions — including most recently in cases related to the coronavirus lockdowns.
The latest instance of this came days ago when the court rejected an emergency appeal by a California church that challenged state limits on attendance at religious services.
That role was previously held by the now-retired Justice Anthony Kennedy, whose seat was filled by President Trump’s conservative pick Justice Brett Kavanaugh. While each of the conservatives were known to side with the liberal wing of the court from time to time last year, Roberts’ role in key decisions has him viewed as a wild card.
“The Chief Justice has clearly inherited the mantle of the swing role from Anthony Kennedy,” Judicial Crisis Network spokesperson Gayle Trotter told Fox News. “Over time he has been unpredictable.”
Perhaps the most notorious of Roberts’ votes was when he sided with liberal justices in a 5-4 decision, authoring the court’s opinion that upheld the Affordable Care Act in 2012. It was Roberts who wrote that the individual mandate was legal because having a monetary penalty attached allowed it to fall under Congress’ taxation power.
More recently, Roberts authored a 5-4 decision last year where he led conservative justices in a controversial ruling where the court said it was not their role to get involved in partisan gerrymandering claims.
According to statistics compiled by SCOTUSBlog, the court’s October 2018 term featured 17 cases that resulted in 5-4 decisions where all four liberal justices voted together. Of these, Roberts turned out to be a deciding vote in 10 of them, sticking with his fellow conservatives seven times and voting with liberal justices three times. As it turns out, Justice Neil Gorsuch – who is often viewed as more traditionally conservative – sided with the liberal contingent in four 5-4 decisions.
So far in the court’s current term, there have been four 5-4 decisions with conservatives in the majority for all of them.
Roberts could play a role in another key case that was heard this term, one that involves a Louisiana abortion law that requires doctors who perform abortions to have admitting privileges at a nearby hospital.
When the Supreme Court blocked a similar law in Texas with a 5-4 ruling, Roberts and other conservatives were in the minority, with Kennedy being the swing vote for the liberals. When a request for a temporary injunction against the Louisiana law came before the court last year, Roberts sided with liberals in a 5-4 ruling that blocked the law for the duration of the case.
Time will tell which way Roberts leans in deciding the case on the merits. Oral arguments in the case took place in March, and Roberts appeared to wonder if the Louisiana case could be distinguished from the Texas one.
The Texas law was struck down for placing an undue burden on women seeking abortions because it would have left few facilities remaining in the state, but Roberts and Kavanaugh both questioned whether that would necessarily be the case everywhere. They asked during oral arguments if Louisiana’s law would be an undue burden if few or any doctors would have problems getting admitting privileges.
Roberts suggested that while Texas’ law was found to be problematic given the facts in that case, other states may have different standards that might be constitutional.
Fox News’ Bill Mears, Tyler Olson and The Associated Press contributed to this report.