Opinion | John Roberts, Conservative Statesman

The unusual powers of the American Supreme Court have unusual effects on all its members, but especially on whichever justices hold the balance of power: Their role fits especially uneasily with the letter of the Constitution and modern democratic norms, evoking more ancient forms or concepts — the Roman censor, the Greek archon, Plato’s philosopher-king.

Three figures have occupied and sometimes shared this role over the last two generations, and each has brought a different mind-set to the work.

Sandra Day O’Connor, drawing on her background as an elected official, often seemed to regard herself a canny intuiter of the American middle ground, constantly seeking political balances and settlements.

Then Anthony Kennedy, who shared the role with O’Connor and stood alone after her retirement, seemed to favor the philosopher-king model, issuing sweeping judgments based on his distinctive libertarianism, often written in the style of a papal bull.

John Roberts, who inherited the role fully in 2018, lacks the same influence now that the court is no longer split 5-4; the awesome power that Kennedy enjoyed is diminished by being shared with Brett Kavanaugh or Neil Gorsuch or Amy Coney Barrett.

But it’s still Roberts who plays the crucial role the most, Roberts whose position allows him some modest steering power, and Roberts whose stamp seems strongest on this Supreme Court season, with his rulings against affirmative action and President Biden’s student debt cancellation rounding out the term.

So what can we say about his work as the Court’s decider? A common interpretation casts him as a careful legal politician and aggressive husbander of the court’s legitimacy — whether via judicial minimalism (the quest for decisions with narrow implications) or via a deference to stare decisis (for all the high-profile exceptions, the Roberts court has been more cautious about overturning precedent than its predecessors).

Roberts’s critics would turn this interpretation into a critique. From the right would come the complaint that he issues decisions (his vote to uphold Obamacare is a particular sore spot) that seem like political calculation rather than coherent constitutional interpretation; from the left, the complaint that he’s a minimalist on smaller cases, husbanding the court’s credibility for big Republican-friendly rulings.

The combined critique yields a correct description: Roberts wields his Supreme Court swing vote as a kind of conservative statesman, with a vision of the long-term (not just immediate) interests of the right-of-center coalition in the background of his rulings. The minimalism is part of this attempted statesmanship, so is the occasionally implausible difference-splitting, so are the bigger swings like the affirmative action ruling — and so are brush-backs he occasionally delivers to the right. He acts, in many ways, like the farsighted Republican president we haven’t had this century — ideological but careful, moderating his own side’s demands but still seeking its advantage.

This approach can resemble O’Connor’s politician’s style, but it also differs in key ways. The chief justice is more conservative, so instead of seeking the middle-groundish deal, he’s often seeking the most politically tenable victory for the right. He’s also somewhat more constitutionally rigorous, with the detail in interpretation (whether you find it persuasive or not) that’s integral to conservatism’s theory of how the court should issue its interpretations.

That rigor is most likely to fail when Roberts is attempting to moderate the right’s demands. His decision to uphold Obamacare was the correct one, but his specific justification didn’t make much sense. His unsuccessful attempt, in Dobbs, to find a new point of compromise on abortion was legally and philosophically incoherent. In his rulings against the Trump White House’s census and immigration gambits you could almost hear the political wheels turning, and it’s hard to imagine him issuing the same rebukes against a more normal G.O.P. president.

But that’s also part of his political strength: At a time when the Republican Party is proudly and often disastrously abnormal, Roberts is one of the few powerful figures who’s attuned to how conservatism relates to the country as a whole.

And often his jurisprudence amounts to saying yes to the right where it’s acting like a normal American formation, and emphatically no where it’s not. To take this term’s examples: Yes, you can overthrow an affirmative action regime that was constitutionally dubious, politically unpopular and internally contradictory. No, you can’t rely on a too-clever-by-half interpretation of the power of state legislatures to get out of the obligation to win clear victories at the polls.

Any praise for Roberts’ acumen has to come with the proviso that it’s daft for a democratic republic to have an unelected justice play this kind of statesman role. But if no one else fills the part, I’m disinclined to rage against him: Better a different system, but in this system, better John Roberts than nobody at all.