When the Supreme Court recently issued an injunction favoring California churches in a coronavirus restrictions dispute, Chief Justice John Roberts joined the liberal minority in dissent.
It was not the first time. Since Justice Amy Coney Barrett joined the court, Roberts, more often than not, has voted with the minority when it comes to religious freedom during the pandemic. The minority is a new position for Roberts, who, since being nominated by President George W. Bush in 2005 and confirmed by the Senate, historically has voted with the majority more than any of the other justices currently serving on the court.
But former President Donald Trump’s three appointees, Barrett, Brett Kavanaugh, and Neil Gorsuch, have left the centrist Roberts at odds more often with his fellow Republican-appointed colleagues. The chief justice still commands the court, but in the past year sometimes has found himself alienated from other court conservatives.
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Roberts is known for valuing the court’s institutional legitimacy. Here are three times that the chief justice has found himself at odds with the court’s majority or pushing back against pressure to allow the encroachment of politics on the court.
1. Religious freedom during the coronavirus pandemic
When churches began seeking emergency injunctions from the court last spring, Roberts’s vote was the linchpin that held up state restrictions. And in a May opinion denying a California church relief from Gov. Gavin Newsom’s restrictions on the freedom of worship, Roberts wrote that in his view, it was not the Supreme Court’s place to issue injunctions in the still-volatile pandemic conditions.
Instead, Roberts said, local officials should be allowed to respond to the “changing facts on the ground,” which made it unlikely that the restrictions violated the First Amendment.
This view prevailed, and the court continued to rebuff churches seeking relief until last Thanksgiving when Barrett swung the court in the other direction with a case concerning New York churches and synagogues. Barrett’s vote, which threw Roberts into the minority, set the tone for the next round of church cases. The court since then has consistently granted churches injunctive relief against coronavirus restrictions.
2. Nominal damages in campus free speech dispute
Roberts issued a blistering rebuke to a majority led by Justice Clarence Thomas in March after the court ruled that a college student had the ability to seek nominal damages from a school that had restricted his free speech. At issue was whether the student could seek nominal damages because the school had changed its rules when he complained about its prohibition on his campus preaching. Thomas and every other justice agreed that he did.
Roberts took the opposite tack, and in his opinion, accused the majority of devaluing the court’s legitimacy by widening the range in which people could seek nominal damages.
“The Court sees no problem with turning judges into advice columnists,” Roberts wrote, complaining that Thomas’s view would open the door for frivolous lawsuits whenever someone felt that his or her rights had been unfairly abridged.
3. Trump’s second impeachment
The entire court agreed not to take up any of Trump’s election lawsuits. And after the Jan. 6 Capitol Hill riots, Roberts made sure that the court would have nothing to do with Trump’s second impeachment trial. Although widely criticized by some congressional Republicans and Democrats alike at the time, Roberts reportedly decided against presiding over the trial because Trump was no longer a sitting president.