John Roberts, a Popular Leader
Chief Justice John Roberts is the most popular of 11 national leaders the Gallup poll asked about, with a 60% approval rating. (By contrast, at the bottom of the heap were five politicians, each with a rating below 45%. In order: VP Kamala Harris, Chuck Schumer, Joe Biden, Nancy Pelosi and Mitch McConnell).
Why is that germane to a criminal law blog? Because Roberts, despite occasional loud complaints by conservatives and praise by liberals, has been a pretty reliable vote in favor of law enforcement and the death penalty in particular.
Roberts was the author of the plurality opinion in Baze v. Rees, the 2008 case that rejected a challenge to lethal injection, by far the most frequently used method of execution. He was the deciding vote in favor of capital punishment in the follow-up method of execution case, Glossip v. Gross (decided 5-4 in 2015). In February 2019, Roberts was part of the majority in a 5–4 decision rejecting a Muslim inmate’s request to delay execution in order to have an imam present with him (an issue still percolating at the Court).
Roberts has not been uniform in his voting pattern, and would not be mistaken for, e.g., Justice Thomas or Justice Alito. But by-and-large, he has been good news for law and order, and for conservatives more generally. The Left occasionally likes to adopt him for his decisive vote upholding Obamacare in the Sebelius case, and was happy to hail him as the “swing” vote, at least before Justice Kavanaugh replaced Justice Kennedy and Justice Barrett replaced Justice Ginsburg.
But his actual record is not one liberals enjoy, as they are happy to remember when engaged in their current grousing about the Court, and in particular the move, gaining subscription in some quarters, to pack it. In particular, Roberts was the decisive vote in the most important Second Amendment case (Heller), and the main campaign finance case (Citizens United), both of which have provided limitless heartburn to the Left. He also dissented in Obergefell, disagreeing with the Court’s narrow majority that same-sex couple have a constitutional right to marry — a dissent that took considerable intestinal fortitude inside the Beltway. Although little remembered now, he declined to preside over the second impeachment trial of Donald Trump, who was impeached while still President, but whose term had expired by the time of the Senate proceeding.
When a conservative, mostly law-and-order Justice ranks as the most popular national leader, swamping a (now) anti-death penalty President, celebrations by the Left that they have taken over the country’s direction may be a mite premature.
Interesting point about the death penalty, though it seems worth nothing that in 2005, the US had 60 executions and 140 death sentences imposed. That was the year Roberts became chief, and since that time the US has not had any year with that many execution or that many death sentences. Indeed, even in the pre-pandemic Trump years, the US averaged less than 25 executions and less than 40 death sentences. Also, after national incarceration rates peaked a few years after CJ Roberts took over, incarceration rates have declined considerably during the bulk of his tenure. Of course, these data just highlight that policy, politics and practice often matter more than SCOTUS work, but I still think it significant that policy, politics and practice has embraced and effectuated all sorts of criminal justice reform during the tenure of a “mostly law-and-order [Chief] Justice.”
Moreover, CJ Roberts has been an interesting, though not always predictable, vote in favor of a fairly broad view of certain pro-defendant applications of the Fourth and Sixth (and sometimes even Eighth) Amendments. At the very least, I think one can reasonably say that CJ Roberts votes against law enforcement considerably more than the man he replaced and clerked for. In addition, it seems notable that, while the Chief has been sometimes eager to help engineer reversals of various precedents he thinks misguided, I cannot readily think of any significant pro-defendant precedents that he has sought to undo.
Perhaps the Chief is so popular because he is not easily pegged (though I think it is mostly the title, robe and low profile).