But on cases affecting the core electoral interests of the two parties — like the decision impending this week on whether the Trump administration can add a citizenship question to the 2020 census — Roberts has conspicuously deviated from that pattern. He has repeatedly joined in 5-4 Supreme Court decisions that align all the Republican-appointed justices against all the Democratic-appointed ones on cases that set the underlying rules of political competition, from campaign finance to voting rights. And on those cases, critics say, he has consistently voted with the other GOP-appointed justices to produce rulings that benefit the Republican Party’s electoral interests.
“One thing Roberts has been consistent about is his willingness to take extreme stances to undermine long-standing rules of democracy,” says Michael Waldman, president of the Brennan Center for Justice at New York University, a group that advocates for expanded voting rights. “We all are impressed by his institutionalism and his deftness at steering the Supreme Court away from making it such a central partisan topic, such as in the ACA case. The democracy issues are where the court has been most aggressive, and he has not been a temporizing swing vote but an ardent activist.”
The census case, Department of Commerce v. New York, crystallizes these issues even more than the earlier electoral decisions in Roberts’ tenure because his role on the court has changed. With the retirement of Anthony Kennedy, a President Ronald Reagan appointee who often functioned as the court’s swing vote, and his contentious replacement last year by the more reliably conservative Justice Brett Kavanaugh, Roberts has become the closest thing to a swing vote on the court, legal analysts agree. That means a party-line decision supporting the Trump administration on the census case would more clearly bear his stamp — and thus more directly undercut his attempts to portray the court as nonpartisan.
Richard Hasen, a law professor at the University of California at Irvine who specializes in election law, says that “historically … it has been mostly true” that Roberts has consistently voted to uphold the GOP’s core interests in cases that affect the rules of politics. But, Hasen says, “He’s in a different position now. He’s been the chief justice for a decade but only now is he a swing justice and only now is he on a court when all the conservatives are Republicans and all the liberals are Democrats.”
Citing the formulation in the recent biography of Roberts by CNN legal analyst Joan Biskupic, Hasen says the census case “will be a great test … of which Roberts is going to show up: the movement conservative Roberts or the pragmatic instituitionalist Roberts.”