Is John Roberts Restrained?Michael Ramsey

At Bloomberg View, Noah Feldman: The Lonely Road Ahead for John Roberts.  He argues:

[Senator Ted] Cruz’s repudiation of Roberts, a fellow product of the conservative legal establishment, is just the latest confirmation of an astonishing process: The chief justice, a lifelong conservative who hasn't abandoned his views, is nevertheless being abandoned by conservatives -- without being embraced by liberals.

Having exercised judicial restraint in the two Obamacare cases and in the gay-marriage decision, Roberts is in the admirable and unenviable position of having a principled, across-the-board stand against activism. It's admirable because justices are supposed to have, you know, a coherent judicial philosophy. And it's unenviable because, in an era of activism, it wins you nothing but enemies on both sides.

But does Roberts really have a "principled, across-the-board stand against activism"?  In a word, no. (I use the phrase "judicial restraint," as Feldman apparently does, to mean deference to the political branches).  Consider the Chief Justice's positions in these cases:

Citizens United v. FEC (wrote 5-4 majority opinion invalidating federal campaign finance laws, over a strong dissent invoking deference).

McCutcheon v. FEC (wrote plurality opinion invalidating federal limit on campaign contributions, over a strong dissent invoking deference).

United States v. Stevens (wrote majority opinion invalidating federal law against depiction of animal cruelty)

United States v. Alvarez (joined opinion invalidating federal statute punishing lies about military service).

Snyder v. Phelps (wrote majority opinion invalidating state law giving remedies for offensive speech).

Brown v. Entertainment Merchants Association (concurred in judgment invalidating state law restricting violent video games, over dissent invoking deference)

Reed v. Town of Gilbert (joined majority opinion invalidating municipal sign regulation).

McCullen v. Coakley (wrote majority opinion invalidating state law regarding speech near abortion clinics).

True, these are all First Amendment cases.  Feldman acknowledges Citizens United (in a footnote!) but says (based on nothing) that "the First Amendment has always been a gray area for judicial restraint."  Well, how about non-First Amendment cases?

District of Columbia v. Heller (joined 5-4 majority invalidating federal gun regulation, over strong dissent invoking deference).

McDonald v. City of Chicago (joined 5-4 majority invalidating state and local gun regulation, over strong dissent invoking deference)

Shelby County v. Holder (wrote 5-4 majority opinion invalidating part of federal voting rights act, over a strong dissent invoking deference)

Free Enterprise Fund v. PCAOB (wrote 5-4 majority opinion invalidating removal provisions of federal statute establishing PCAOB).

Parents Involved v. Seattle (wrote 5-4 majority opinion invalidating local affirmative action program, over a strong dissent invoking deference).

Arizona State Legislature v. Arizona Redistricting Commission (wrote dissent that would have invalidated state redistricting law).

Arizona v. United States (joined majority opinion invalidating key parts of state immigration statute).

Of course, Roberts has voted to uphold laws on the basis of deference (most recently in the Obergefell same-sex marriage case).  But Feldman's claim is that Roberts' pursuit of restraint is setting him apart from the other conservative-leaning Justices (a "lonely road").  As in Obergefell, almost all of Roberts' "restraint" cases find him aligned with his fellow conservatives (death penalty, criminal procedure, voter identification).

Feldman's only evidence comes from the two Obamacare cases. Even these don't seem very persuasive.  In King v. Burwell, the statutory case, Roberts' vote seems as easily explained by an interpretive approach that looks more to congressional purpose than plain text (consistent with his vote in other statutory cases such as Yates v. United States and Bond v. United States -- both cases where he ruled against the government).  NFIB v. Sebelius, the constitutional case, points in various directions.  First, Roberts invalidated part of the law (relating to Medicare expansion).  Second, he upheld the individual mandate under Congress' taxing power only after finding it beyond Congress' commerce power -- a complicated (one might say convoluted) approach that may be the basis for future rulings against Congress while leaving this particular law standing.  NFIB thus looks as much like an attempt to preserve the core of one law rather than a general principle.

What Feldman needs (but can't find) is a pattern of cases in which Roberts voted with the liberal-leaning Justices on the basis of deference to uphold laws conservatives wanted struck down. While Feldman doesn't come up with any (apart from the Obamacare cases), I can think of a couple -- Williams-Yulee v. Florida Bar (First Amendment) and Comstock v. United States (federalism).  But these seem like outliers, hardly enough to show the Chief Justice's core interpretive principles.

You might think I am cherry-picking cases.  But in fact, I'm just taking the main cases in the leading Constitutional Law casebook (which I use) -- co-authored by Professor Feldman.  I assume, therefore, that Professor Feldman is well aware of the Chief Justice's long list of non-restrained cases.  What, then, is the point of his column?

A small goal may just be to highlight and celebrate the tension between Roberts and some conservatives (though not all) over the Obamacare cases.  But one may speculate that a bigger goal is to advance a narrative in which Roberts stars as the principled man of judicial restraint, to encourage him to break with conservatives in the future.  Consider that in the upcoming term there are major cases in which conservatives seek to overturn laws much favored by liberals: Friedrich v. California Federation of Teachers (compelled union dues); Fisher v. University of Texas (affirmative action at the university level); Evenwel v. Abbott (counting non-citizens for purposes of redistricting).  It would be nice (for liberals) to have Roberts leaning their way on deference grounds in these cases.

I doubt that Feldman's narrative will take hold.  The Chief Justice is indeed cautious, often preferring incremental rulings rather than sweeping ones.  But I see no evidence of overarching deference.  More likely, he sees himself doing what he famously said in his confirmation hearings -- calling balls and strikes.  In the umpire model, there's no weight given to strikes over balls; the umpire doesn't defer to the pitcher and the catcher on the right call.