In an interview with CBN News’ David Brody on Wednesday, Vice President Mike Pence responded to a question about the record of Chief Justice John Roberts, who in the last few weeks joined the liberal wing of the Supreme Court to strike down a pro-life Louisiana law, re-define the word “sex” in federal employment law to include homosexuality and transgenderism, and uphold a Nevada COVID order that favored casinos over churches in terms of reopening.
“Look, we have great respect for the institution of the Supreme Court of the United States,” the Vice President told Brody. “But Chief Justice John Roberts has been a disappointment to conservatives, whether it be the Obamacare decision or whether it be a spate of recent decisions all the way through Calvary Chapel (the Nevada casino case).”
Although the Vice President was referring to more than just abortion, free speech, marriage and religious liberty cases, his criticism strikes a chord with most social conservatives, especially with his rulings this year.
How has Roberts done overall? A look at his record since his confirmation to the Supreme Court in 2005 reveals more alignment with his other conservative colleagues on the court than not, with one or two notable exceptions, until this year. Here are the major cases most social conservatives remember and mention when they talk about the Chief Justice’s judicial philosophy and how it played out over the years.
Gonzales v. Carhart (2007) – Roberts voted with a 5-4 majority opinion upholding a federal law banning partial-birth abortions.
Federal Election Commission v. Wisconsin Right to Life (2007) – Roberts wrote the opinion for a 5-4 majority upholding the right of free speech during an election season.
Citizens United v. Federal Election Commission (2010) – Roberts joined a 5-4 opinion upholding the freedom of speech in another election-related case.
Salazar v. Buono (2010) – Roberts joined a 5-4 opinion ruling that a war memorial in the shape of a cross located on government property in the Mojave Desert could constitutionally be swapped for private land.
Christian Legal Society v. Martinez (2010) – Roberts dissented in a 5-4 decision that ruled that a public university could reject a Christian student club’s request for official status because it had a belief or conduct code that required its members to be Christians. The school had an “all comers” policy, which required all clubs to let any students join and be leaders, regardless of their agreement with the club’s purpose.
National Federation of Independent Business v Sebelius (2012) – Roberts wrote the opinion in a 5-4 decision (joined by the four liberal justices) upholding Obamacare’s “individual mandate” – the fine people would have to pay to the IRS for being uninsured – as constitutional under Congress’ taxing authority, even though the law itself and the legislative history declared it a penalty rather than a tax.
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) – Roberts wrote for a unanimous court that a religious school had a First Amendment right to hire and fire a teacher for religious reasons, free from the effect of federal nondiscrimination laws. The Court, in this case, first recognized the “ministerial exception” that had been developing in the lower federal courts for years.
United States v. Windsor (2013) – Roberts dissented in a 5-4 decision that struck down the federal Defense of Marriage Act. Roberts, along with Justices Scalia, Alito and Thomas, would have upheld the traditional definition of marriage as between one man and one woman under federal law.
Burwell v. Hobby Lobby (2014) – Roberts joined a 5-4 decision upholding the religious freedom of a closely held family company that objected, on religious grounds, to a federal regulation (the “HHS contraception mandate”) requiring employers to provide possible abortion-causing contraceptives in company health plans.
Town of Greece v. Galloway (2014) – Roberts joined a 5-4 decision ruling that prayers before government meetings, aka legislative prayer, are constitutional.
Obergefell v. Hodges (2015) – Roberts dissented along with Scalia, Alito and Thomas in a 5-4 decision that struck down state marriage amendments and declared same-sex marriage to be a constitutional right under the 14th Amendment. Roberts dissent strongly criticized the majority opinion: “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial ‘caution’ and omits even a pretense of humility, openly relying on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice’.”
Whole Woman’s Health v. Hellerstedt (2016) – Roberts dissented in a 5-4 decision that struck down a Texas pro-life law requiring abortionists to obtain admitting privileges at a nearby hospital. He would have upheld the law.
Trinity Lutheran Church v. Comer (2017) – Roberts wrote the majority opinion in a 7-2 ruling that states cannot exclude religious entities from the benefits of generally available state programs solely because they are religious.
Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) – Roberts joined a 7-2 opinion ruling that the state government of Colorado had discriminated against a Colorado baker on the basis of his religious belief when it attempted to punish him for declining to create a one-of-a-kind cake for a same-sex wedding.
The American Legion v. American Humanist Association (2019) – Roberts joined a 7-2 opinion ruling that the Bladensburg War Memorial, shaped in the form of a cross, could stay on government-owned land.
The year 2020, however, appears to be a mixed bag when it comes to Roberts’ votes in key cases.
Calvary Chapel v. Sisolek (2020) – Roberts joined the four liberal justices in denying an injunction to a church challenging the Nevada governor’s reopening order that allowed venues such as casinos to reopen with 50% capacity, while restricting churches of any size to only 50 people.
Our Lady of Guadalupe School v. Morrissey-Berru (2020) – Roberts joined a 7-2 opinion upholding the right of religious schools to hire and fire teachers free of government nondiscrimination laws under the First Amendment’s “ministerial exception.”
Espinoza v. Montana Dept. of Revenue (2020) – Roberts wrote the majority opinion in a 5-4 decision rejecting a state attempt to exclude religious schools from a state scholarship program merely because they were religious.
June Medical Services v. Russo (2020) – Roberts joined the four liberal justices in striking down a Louisiana pro-life law requiring abortionists to obtain admitting privileges at a nearby hospital. Although Roberts voted the opposite way in the 2016 Hellerstedt case (see above) and would have supported a similar Texas law, this time he wrote a concurring opinion stating that because Hellerstedt was a precedent of the Court, he had to follow it.
Little Sisters of the Poor v. Pennsylvania (2020) – Roberts joined in a 7-2 opinion upholding the Trump Administration’s regulation expanding the religious exemption contained in the HHS contraceptive mandate (discussed in the Hobby Lobby case, above).
Bostock v. Clayton (2020) – Roberts joined with the four liberal members of the court and with Justice Neil Gorsuch in a ruling that redefined the word “sex” in the 1964 Civil Rights Act to include homosexuality and transgenderism among its protected classes.
The Chief Justice’s record on social conservative issues, at least until 2020, was overwhelmingly characterized by a judicially conservative philosophy, with the puzzling exception of his Obamacare decision in NFIB v. Sebelius. This year’s decisions, however, reveal a startling inconsistency in his approach, which has left the Vice President and many social conservatives scratching their heads.
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