John Roberts and the Return of High Court Taneyism

With a handful of looming, high-profile decisions on the Supreme Court’s docket this term, Chief Justice John Roberts’s jurisprudential Taneyism is once again threatening to rear its head. And with just months to go before this year’s long-awaited presidential election, a key question is now resurfacing: will Roberts’ well-documented obsession with the Court’s political reputation and his own image once again outweigh his commitment to upholding the Constitution and the rule of law?

Last month, to the chagrin of many conservatives, Roberts succeeded in doing what he failed to achieve with the 2022 Dobbs decision: bringing a constitutionally conservative justice to his side.

On January 22, the High Court granted a request from the Biden administration to allow federal Border Patrol agents to remove razor wire installed by Texas along the southern border. Perhaps unsurprisingly, Roberts ruled in favor of the federal government with the Court’s three Democrat-appointed justices.

Also in the majority, however, was Trump-appointed Justice Amy Coney Barrett, who abandoned her fellow conservative justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—to join Roberts and the liberals in a tiebreaking 5-4 majority.

Some Court observers were quick to note that the Court’s January 22 ruling only relates to a court order on removing the razor wire and in fact does not forbid Texas from reinstalling it and other barriers along the Texas border. Moreover, the 5th Circuit Court of Appeals has yet to hear the case on the substantive merits, leaving open the possibility of a Texas victory in the near future.

But even so, Roberts’s apparent success in bringing Justice Barrett to his side in the Texas ruling signals a potentially ominous sign for the remainder of the Court’s 2023-2024 term. The justices are soon expected to decide questions relating to President Donald Trump, including on matters such as a ballot eligibility, the question of presidential immunity, the dubious legality of the appointment of Special Counsel Jack Smith, and the extraordinary decision of a radicalized federal judge to silence a defendant from criticizing the role of “politics” in a clearly politicized prosecution. They are also set to rule on issues such as the future of Chevron deference, which gave unwarranted authority to the administrative state, and the availability of abortion pills, among other high-profile questions.

With the constitutional and political stakes as high as they are, Roberts is almost certainly working frantically behind the scenes on some of these cases to circumvent what he perceives to be an impending public relations disaster for the Court as it approaches the end of its term this summer.

Roberts’s inclination toward Tanyeism was first exposed in a May 2022 AMAC Newsline column, “Creeping Taneyism at the High Court: Can Roberts Alter Alito?” That piece provided an astonishing account of Roberts’s obsession with keeping in place his two-decade-old habit of handing unexpected victories to the Democrat Party, the media, and the cultural left ostensibly in order to protect the nation and the Court from what he sees as disruptions to social “stability” and the dangers of “polarized” politics.

The 2022 column compares Roberts to the Court’s fifth Chief Justice, Roger Taney, who sought in 1857 to ease the nation and the Court through the dangerous shoals of disunion over slavery with the ill-considered Dred Scott decision, which succeeded only in stoking the fires of division. By tracing in detail the current Chief Justice’s remarkable history of media and Court maneuvers in service of vague concepts like “fluidity in the middle,” the column lays out Roberts’s shaky rationale for justifying his own frequent abandonment of the constitutionalist principles on which he was first nominated and appointed to the Court in 2005.

Of course, the failures of Roberts’s Taneyist maneuvering in the Dobbs decision (in which he vigorously attempted to lobby Justices Kavanaugh and Barrett to deliver a middle-ground ruling that would have kept Roe largely intact) destroyed the idea that the Supreme Court was the Roberts Court. Instead, it proved that the Chief Justice’s inclination to cater to the political sensibilities of the day rather than uphold the Constitution was, at least for a time, destined to fail.

But with so many high-stakes cases near on the horizon and Justice Barrett’s apparent newfound willingness to link arms with Roberts on at least the procedural aspect of one contentious legal question, the Chief Justice’s Taneyism threatens both the institutional legitimacy of the Court and the enduring health and stability of the American constitutional order.

As previously noted here, in attempting to spare both himself and the Court from political criticism, the Chief Justice is not only setting himself up to become the most political member of the Court, but he is also doing more than even the most outspokenly progressive justices to cement the Court’s status as a political—rather than a legal—institution in the eyes of the American public.

As the 2022 column pointed out, Roberts had promised the president who nominated him and the U.S. Senate that confirmed him that he understood his role as a judge limited him to being a “balls and strikes” referee who would make decisions based on the rulebook of the Constitution and statutory law. However, beginning with in an astonishing series of interviews he started giving after President Obama and the media began targeting the so-called “Roberts Court,” Roberts increasingly tried to soften his image by using buzzwords and slushy language like “fluidity in the middle” to describe the proper frame of mind for justices in approaching contentious cases.

This is precisely the sort of reasoning his critics have charged led to rulings that, for instance, saw Roberts joining Justice Anthony Kennedy in a spectacular case of legislating-from-the-bench to massively expand Obamacare.

Perhaps nothing would do more damage to the Court in the eyes of the American voter than a decision allowing states to remove Donald Trump—the presumptive Republican nominee and the current favorite to win the White House this November—from the ballot, or future rulings further limiting border states’ ability to defend their sovereignty and protect their communities. Though Roberts fails to see it, should he engage in public relations-oriented jurisprudence instead of a sincere effort to uphold the Constitution, he risks doing more institutional damage than anyone else to the Court he claims to be protecting.

A cynic might note that in the past, when he had cost the Court dearly with the constitutionalists, Roberts drew a host of favorable headlines about himself from publications like Slate calling him a “political genius” to The Atlantic calling him a “moderate hero” and “just who the Supreme Court needed.” But although such headlines might have helped Roberts personally, his “fluidity in the middle”-based approach to legal decisions has only fed the alligator-like appetite of the left—from President Obama to Senate Majority Leader Chuck Schumer to hardcore progressive extremists—and contributed to their continued furious attacks and even threats on Roberts’s fellow justices as well as the Court as a whole.

Of course, the nightmare that Roberts fears is that the left will howl, as it always does, if it doesn’t get its way, in which case it will claim that Trump-appointed justices are trying to protect the former president at all costs and uphold what the left considers to be outdated views of the Constitution. While the Supreme Court has had an honorable tradition of not deliberately seeking to stoke social or political passions with far-reaching decisions—a tradition liberal justices have so frequently attempted to destroy—constitutionally sound rulings in the cases now before the Court can hardly lead to accusations of conservative adventurism.

Of course, should Roberts manage to get a 9-0 majority on the looming ballot question, it would temper left-wing criticism, but only temporarily alleviate conservative concerns that such a decision is merely set up for something that fits in more with Roberts’s trademark Taneyist style somewhere down the road.

Thus, with the High Court on the brink of several landmark rulings this June, the Court’s 6-3 Republican-appointed majority has a chance to deal a final death warrant to Roberts’s judicial Taneyism. And at a time when trust in the integrity of American institutions is reaching all-time lows, nothing could be better for the nation, the culture, and the Court itself.