It is widely considered to be the most conservative court since the
Vinson Court (1946–1953). This is due to the retirement of the relatively moderate Justice
Sandra Day O'Connor and the confirmation of the more conservative Justice
Samuel Alito.[1] The ideological balance of the court shifted further to the right in the following years through the replacement of swing-vote
Anthony Kennedy with
Brett Kavanaugh in 2018 and the replacement of liberal
Ruth Bader Ginsburg with
Amy Coney Barrett in 2020.
Since the appointment of Barrett, the Roberts Court is the most unpopular Court since polling started by Gallup in 1973.[2]
Membership
Roberts was originally
nominated by President
George W. Bush as an associate justice to succeed
Sandra Day O'Connor, who had announced her retirement, effective with the confirmation of her successor. However, before the Senate could act upon the nomination, Chief Justice
William Rehnquist died. President Bush quickly withdrew the initial nomination and resubmitted it as a nomination for Chief Justice; this second Roberts nomination was confirmed by the Senate on September 29, 2005, by a 78–22 vote. Roberts took the
constitutionaloath of office, administered by senior Associate Justice
John Paul Stevens (who was the acting chief justice during the vacancy) at the
White House after his confirmation the same day. On October 3, Roberts took the judicial oath provided for by the
Judiciary Act of 1789, prior to the first oral arguments of the 2005 term. The Roberts Court commenced with Roberts as Chief Justice and the final eight associate justices from the
Rehnquist Court: Stevens, O'Connor,
Antonin Scalia,
Anthony Kennedy,
David Souter,
Clarence Thomas,
Ruth Bader Ginsburg, and
Stephen Breyer.
President Bush's second nominee to replace O'Connor,
Harriet Miers, withdrew before a vote; Bush's third
nominee to replace O'Connor was
Samuel Alito, who was confirmed in January 2006. In 2009, President
Barack ObamanominatedSonia Sotomayor to replace Souter; she was confirmed. In 2010, Obama
nominatedElena Kagan to replace Stevens; she, too, was confirmed. In February 2016, Justice Scalia died; in the following month, Obama
nominatedMerrick Garland, but Garland's nomination was never considered by the Senate, and it expired when the 114th Congress ended and the 115th Congress began on January 3, 2017. On January 31, 2017, President
Donald TrumpnominatedNeil Gorsuch to replace Scalia. Democrats in the Senate filibustered the Gorsuch nomination, which led to the Republicans exercising the "
nuclear option". After that, Gorsuch was confirmed in April 2017. In 2018, Trump
nominatedBrett Kavanaugh to replace Kennedy;[3] he was confirmed. In September 2020, Justice Ginsburg died; Trump
nominatedAmy Coney Barrett to succeed Ginsburg and she was confirmed on October 26, 2020, days before the
2020 election.[4] In 2022, Breyer announced his retirement effective at the end of the Supreme Court term, assuming his successor was confirmed, in a letter to President
Joe Biden.[5] Biden
nominatedKetanji Brown Jackson to succeed Breyer,[6] and she was confirmed by the Senate.[7] Breyer remained on the Court until it went into its summer recess on June 30, at which point Jackson was sworn in,[8] becoming the first black woman and the first former
federal public defender to serve on the Supreme Court.[9][10]
Timeline
Note: The blue vertical line denotes "now" (April 2024).
Bar key:
Ford appointee Reagan appointee G. H. W. Bush appointee Clinton appointee G. W. Bush appointee Obama appointee Trump appointee Biden appointee
Medellín v. Texas (2008): In a 5–4 decision in which the majority opinion was delivered by Chief Justice Roberts, the Supreme Court held that even when a
treaty constitutes an international commitment, it is not binding domestic law unless either the
United States Congress has enacted statutes implementing it or the treaty is explicitly "
self-executing".
District of Columbia v. Heller (2008): In a 5–4 decision in which the majority opinion was delivered by Justice Scalia, the Supreme Court held that the
Second Amendmentapplies to
federal enclaves, and that the amendment protects the right of individuals to possess a firearm, regardless of service in a militia. McDonald v. City of Chicago (2010), in a 5–4 decision written by Justice Alito, extended this protection to the states.
Kennedy v. Louisiana (2008): In a 5–4 decision written by Justice Kennedy, the court ruled that the
Eighth Amendment prohibits capital punishment for crimes that do not involve homicide or
treason.
National Federation of Independent Business v. Sebelius (2012): In a 5–4 decision written by Chief Justice Roberts, the Court upheld most of the provisions of the
Patient Protection and Affordable Care Act, including the
individual mandate to buy health insurance. The mandate was upheld as part of Congress's power of
taxation. In a subsequent case, King v. Burwell (2015), the Court upheld the Patient Protection and Affordable Care Act, this time in a 6–3 opinion written by Chief Justice Roberts. In a third related case, California v. Texas (2021), the Court held that neither states nor individuals had the standing to challenge the PPACA's individual mandate due to the penalty being reduced to $0 in the
Tax Cuts and Jobs Act of 2017. The 7–2 ruling was written by Justice Breyer.
Arizona v. United States (2012): In a 5–3 decision delivered by Justice Kennedy, the Court held that portions of
Arizona SB 1070, an Arizona law regarding immigration, unconstitutionally usurped the federal authority to regulate immigration laws and enforcement.
Shelby County v. Holder (2013): In a 5–4 decision delivered by Chief Justice Roberts, the Court held that section 4 of the
Voting Rights Act of 1965 (
52 U.S.C.§ 10303), which provided a coverage formula for section 5 of the Voting Rights Act (
52 U.S.C.§ 10304), is unconstitutional. The latter section requires certain states and jurisdictions to obtain federal preclearance before changing voting laws or practices, in an effort to prevent those states and jurisdictions from discriminating against voters. Without a coverage formula, section 5 of the Voting Rights Act is no longer in effect.
Riley v. California (2014): In a 9–0 decision, the Court held that the warrantless search and seizure of digital contents of a
cell phone during an arrest is unconstitutional.
Trump v. Hawaii (2018): In a 5–4 decision written by Chief Justice Roberts, the Court overturned a preliminary injunction against the
Trump travel ban, allowing it to go into effect. The Court also overturned the precedent Korematsu v United States (1944), which allowed President Franklin Delano Roosevelt to intern Japanese Americans during World War II.[14]
Carpenter v. United States (2018): In a 5–4 decision written by Chief Justice Roberts, the Court held that government acquisition of cell-site records is a Fourth Amendment search, and, thus, generally requires a warrant.
Janus v. AFSCME (2018): In a 5–4 decision, the Court ruled that public-sector
labor union fees from non-union members violate the First Amendment right to free speech, overturning the 1977 decision in Abood v. Detroit Board of Education that had previously allowed such fees.
Espinoza v. Montana Department of Revenue (2020): In a 5–4 decision written by Chief Justice Roberts, the Court held that a state-based scholarship program that provides public funds to allow students to attend
private schools cannot discriminate against
religious schools under the Free Exercise Clause of the Constitution.
Brnovich v. Democratic National Committee (2021): In a 6–3 decision written by Justice Alito, the Court held that two Arizona voting laws did not violate the
1965 Voting Rights Act nor had a racially discriminatory purpose. The ruling in effect limited Section 2 of the Voting Rights Act.
Americans for Prosperity Foundation v. Bonta (2021): In a 6–3 decision written by Chief Justice Roberts, the Court struck down a California law requiring non-profit organizations to disclose the identity of their large donors to the state, ruling that the regulation placed too much of a burden on donors and violated their
First Amendment rights.
New York State Rifle & Pistol Association, Inc. v. Bruen (2022): In a 6–3 decision delivered by Justice Thomas, the Court struck down a New York law requiring applicants for a concealed carry license to show "proper cause", ruling that the regulation prevented law-abiding citizens with ordinary self-defense needs from exercising their
Second Amendment rights.
Dobbs v. Jackson Women's Health Organization (2022): In a 6–3 decision, a
Mississippi state law that bans most abortion operations after the first 15 weeks of pregnancy was upheld. In a more narrow 5–4 ruling, delivered by Justice Alito, the Court also overturned Roe v. Wade and Planned Parenthood v. Casey, ruling that the Constitution does not confer a right to abortion.
Kennedy v. Bremerton School District (2022): In a 6–3 decision delivered by Justice Gorsuch, the Court ruled that the government, while following the Establishment Clause, may not suppress an individual, in this case a public high school football coach, from engaging in personal religious observance, as doing so would violate the Free Speech and Free Exercise Clauses of the First Amendment. The Court overruled Lemon v. Kurtzman and in doing so overturned the 51-year-old precedent known as the
"Lemon test".
303 Creative LLC v. Elenis (2023): In a 6–3 decision written by Justice Neil Gorsuch, the Court ruled that a businessperson cannot be compelled to create a work of art which goes against their values and which they would not produce for any client, limiting
LGBT rights in favor of freedom of speech and religion.
The Roberts Court has been described as conservative and by many as "dominated by an ambitious conservative wing."[15][16] Alito, Thomas, Kennedy, Roberts, and Scalia generally have taken more conservative positions, while Ginsburg, Breyer, Sotomayor, and Kagan have generally taken more liberal positions. Souter and Stevens had also been part of the liberal bloc prior to their respective retirements. These two blocs of voters have lined up together in several major cases, though Justice Kennedy occasionally sided with the liberal bloc. Roberts has also served as a swing vote, often advocating for narrow rulings and compromise among the two blocs of justices.[12][17] Though the Court sometimes does divide along partisan lines, attorney and SCOTUSblog founder
Tom Goldstein has noted that more cases are decided 9–0 and that the individual justices hold a wide array of views.[18]
The judicial philosophy of Roberts on the Supreme Court has been assessed by leading court commentators including Jeffrey Rosen[19] and Marcia Coyle.[20] Although Roberts is identified as having a conservative judicial philosophy, his vote in National Federation of Independent Business v. Sebelius (2012) upholding the constitutionality of the
Patient Protection and Affordable Care Act (ACA) has caused reflection in the press concerning the comparative standing of his conservative judicial philosophy compared to other sitting justices of conservative orientation; he is seen as having a more moderate conservative orientation, particularly when his vote to uphold the ACA is compared to
Rehnquist's vote in Bush v. Gore.[21] Some commentators have also noted that Roberts uses his vote in high-profile cases to achieve a facially-neutral result that sets up for larger conservative rulings in the future.[22] The Five Four Podcast went so far as to deem this maneuver the "Roberts Two-Step."[23]
Regarding Roberts' contemporaneous peers on the bench, his judicial philosophy is seen as more moderate and conciliatory than that of
Antonin Scalia and
Clarence Thomas.[19][21] Roberts has not indicated any particularly enhanced reading of
originalism or framer's intentions as has been plainly evident in Scalia's speeches and writings.[20] Roberts' strongest inclination on the Court has been to attempt to re-establish the centrist aesthetics of the Court as being party neutral, in contrast to his predecessor Rehnquist who had devoted significant effort to promote a 'states-rights' orientation for the Court. Roberts' voting pattern is most closely aligned with
Brett Kavanaugh's.[24][25][26]
After Ginsburg was replaced by Barrett, several commentators wrote that Roberts was no longer the leading justice. As the five other conservative justices could outvote the rest, he supposedly could no longer preside over a moderately conservative course while respecting precedent.[27][28] Some said this view was confirmed by the court's 2022 ruling in Dobbs v. Jackson Women's Health Organization, which overturned the
landmark rulings Roe v. Wade and Planned Parenthood v. Casey of 1973 and 1992, respectively.[29][30] The conservative bloc is sometimes further split into a wing more hesitant to overrule precedent (Roberts, Kavanaugh, and Barrett), and a wing more willing to overrule precedent (
Clarence Thomas,
Samuel Alito, and
Neil Gorsuch).[31][32][33] Roberts wrote the majority opinion in West Virginia v. EPA which officially established the
major questions doctrine and restricted the ability of the EPA to regulate power plant emissions using generation shifting under the
Clean Air Act (United States). That opinion drew ire from critics who argued that Roberts and the conservative bloc manufactured a doctrine to thwart climate reforms.[34]
Since 2023, criticism of the Court by
Democrats has risen, who have increasingly viewed the Court as being illegitimate.[35][36][37] The Court's legitimacy has also been questioned by its liberal bloc of justices,[38][39][40] as well as the general public.[41]
In a July 2022 research paper entitled "The Supreme Court's Role in the Degradation of U.S. Democracy," the
Campaign Legal Center, founded by Republican
Trevor Potter, asserted that the Roberts Court "has turned on our democracy" and was on an "anti-democratic crusade" that had "accelerated and become increasingly
extreme with the arrival" of Trump's three appointees.[42][43]
Public opinion
The Roberts Court is considered to be the most unpopular Court since Gallup started tracking public approval of the Supreme Court in 1973.[2] Public perception of the Court was at a net negative before the overturning of Roe v. Wade in 2022, and dropped further following the ruling.[44][45] An NPR/PBS NewsHour/Marist poll indicated that
allegations of Clarence Thomas having broken the Court's code of conduct repeatedly eroded trust in the Court further, with public confidence dropping from 59% in 2018 to 37% in 2023.[46]
^
abStaff (June 26, 2022).
"A historically unpopular Supreme Court made a historically unpopular decision". CBS News. Retrieved April 25, 2023. Quinnipiac isn't the only pollster to show a major degradation in the court's standing. The percentage of Americans (25%) who have great or quite a lot of confidence in the court is at the lowest level ever recorded by Gallup since 1973.
^"The Supreme Court's Role in the Degradation of U.S. Democracy"(PDF). Campaign Legal Center. July 13, 2022. Unfortunately, the Supreme Court's relationship to democracy has shifted dramatically in recent years. Under the leadership of Chief Justice John Roberts, the Supreme Court has spent the last two decades systematically dismantling federal voting rights protections and campaign finance laws while enabling states to restrict the franchise and distort electoral outcomes with remarkable zeal. The pace of this upheaval has accelerated since 2017 with the additions of Justices Gorsuch, Kavanaugh, and Barrett. And in its first term, the Roberts Court's new supermajority has demonstrated a ready willingness to overturn precedent and discard long recognized constitutional rights, so we can expect changes in democracy law to be as extreme as they are quick to come.
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Halbrook, Stephen P. "Taking Heller Seriously: Where Has the Roberts Court Been, and Where Is It Headed, on the Second Amendment." Charleston L. Rev. 13 (2018): 175.
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Tribe, Laurence, and Joshua Matz. Uncertain Justice: The Roberts Court and the Constitution (Henry Holt, 2014).
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Waltman, Jerold. Church and State in the Roberts Court: Christian Conservatism and Social Change in Ten Cases, 2005–2018 (McFarland, 2019).