Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, January 25, 2022

Chief Justice Roberts and what it means to be an “institutionalist” Supreme Court Justice.

    The term “institutionalist” is a broad label; its meaning depends upon the level of abstraction at which one describes the relevant institution. An institutionalist might seek to preserve long-standing norms within institutions (such as defending the filibuster in the Senate), or to preserve public faith in a particular government entity. On the Supreme Court, an institutionalist might seek to defend the rule of law in controversial case, or to uphold a robust and powerful conception of the judicial branch, or perhaps more narrowly to preserve the public’s faith in the Court itself as an entity worthy of public respect. Chief Justice Roberts’s jurisprudence often displays institutionalist tendencies concerned with the Court’s viability, even as he also seeks to preserve the judiciary’s independence and authority vis-à-vis coordinate branches. That tension was on display in the recent decisions over President Biden’s vaccine-or-test mandates.

    Roberts has frequently demonstrated his desire to preserve the independence of the Supreme Court, and with it the public’s faith in the Court’s ability to resolve weighty and complex legal issues. Throughout the political turmoil that marked the closing of President Trump’s term, Roberts expressed his desire to stay above the political fray and his faith in the Court to decide cases without political influence. In his 2021 year-end report on the federal judiciary, Roberts suggested that the political branches should return the favor by avoiding interference with the judiciary in the name of reforms that might weaken its status as a co-equal branch. Roberts’s jurisprudence also reflects his instinct to avoid overstepping the Court’s role in resolving politically-charged issues, most famously in his decision that preserved Obamacare to the surprise of many conservative court watchers. Roberts also speaks frequently of the need to build consensus amongst the Justices whenever possible to maintain the Court’s legitimacy in the public’s eyes.

    Roberts is thus surely an institutionalist in the sense that he seeks to preserve the Court’s capacity to resolve controversial issues in ways the public accepts. But at times that goal conflicts with institutionalism at a higher level of abstraction, which might require the Court to robustly define the law and forcefully rebuke the political branches that have, at least in Roberts’s view, overstepped constitutional bounds.

    That conflict was highlighted when the Court recently considered the Biden Administration’s vaccine-or-test mandate for large employers and its vaccine requirement for healthcare workers at facilities receiving Medicare and Medicaid funding. After hearing expedited oral arguments on whether those mandates could remain in place while ongoing legal challenges proceeded through the lower courts, the Court issued per curiam decisions that blocked the large employer mandate during the litigation while allowing the government to temporarily enforce the healthcare worker mandate. Chief Justice Roberts (as well as Justice Kavanaugh) voted to block the large employer mandate and permit the healthcare worker mandate, providing the swing votes that controlled the outcome.

    These decisions were only a preliminary stage of the legal proceedings, and technically addressed only whether Biden’s directives could be enforced while the outcome of legal challenges to them was pending. But because the decisions required the Court to consider the likelihood of the litigants’ success on the merits—and in so doing to plainly spell out their likely reasoning should the substantive legal issues return—they are likely to control the lifespan of those directives in the future.

    The decisions also highlight the tension in Roberts’s institutionalist instincts in such high-profile cases that consider the executive’s potentially expansive powers. The difference in the cases, according to the per curiam decisions, was that while Congress had not clearly authorized the Occupational Health and Safety Administration to issue the large employer mandate, it clearly delegated the Department of Health and Human Services authority to protect patients through a vaccine requirement. That distinction between the authorization of the OHSA and DHHS is razor-thin. As the dissent in the large employer mandate case noted, it is far from clear from an objective reading of their respective Congressional mandates. And the determination of the extent of Congressional authority delegated in such cases is surely a discretionary decision subject to widely varying judicial interpretations.

    While it is impossible to say definitively what motivated the votes in these cases, one plausible theory is that Roberts sought to preserve both a robust conception of the judiciary and public faith in the Supreme Court. By splitting his votes, he was able to offer some support for those concerned with the public health crisis posed by the COVID-19 pandemic while maintaining a robust role for the judiciary in setting the limits of co-equal branches’ authority. Perhaps Roberts hoped to preserve faith in the institution of the Supreme Court in the healthcare worker case while preserving a robust vision of judicial authority in the large employer case.

    Roberts may not be able to have it both ways; his compromise position seems likely to compromise both of his institutionalist desires. Public faith in the Court as an objective arbiter may be undermined when the court blocks a vaccine-or-test mandate that OHSA estimates would have saved nearly 6,500 lives. At the same time, preserving the healthcare worker mandate may undermine the judiciary’s institutional authority to push back against political branches that have, in the Court’s estimation, exceeded their constitutional boundaries. By attempting to preserve both of his institutionalist instincts, Chief Justice Roberts may have failed to preserve either. His voting decision is thus accompanied by both tragic human results and severe damage to the very institutions it seeks to protect.

https://lawprofessors.typepad.com/appellate_advocacy/2022/01/chief-justice-roberts-and-what-it-means-to-be-an-institutionalist-supreme-court-justice.html

Appellate Practice, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink

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