On Tuesday, Chief Justice John Roberts signaled, for the second time in less than two weeks, that he’s not going to let overeager conservative judges willfully ignore the Supreme Court’s precedents — even if Roberts himself disagrees with those precedents.
The first such signal came 12 days ago, when Roberts unexpectedly voted with his liberal colleagues to temporarily halt a Louisiana anti-abortion law that is nearly identical to a Texas law his court struck down in 2016. Roberts is a conservative George W. Bush appointee who typically votes against abortion rights. He joined the dissent in the 2016 Texas case.
Roberts’ second signal to the judiciary’s right flank came in Moore v. Texas, the second case of that name to reach the Supreme Court. Both Moore cases involve Bobby James Moore, a Texas man sentenced to die despite the fact that he is almost certainly intellectually disabled. Under the Supreme Court’s decision in Atkins v. Virginia, which used a term for the intellectually disabled that is now considered deeply offensive, “death is not a suitable punishment for a mentally retarded criminal.”
Nevertheless, the Texas Court of Criminal Appeals waged a guerrilla campaign against Atkins, repeatedly declaring that Mr. Moore is not intellectually disabled and therefore may be executed.
In the first Moore case, the Supreme Court reversed the Texas criminal appeals court because the state court evaluated Moore’s alleged disability using a test that is divorced from clinical standards used by mental health professionals. “Adjudications of intellectual disability should be ‘informed by the views of medical experts,'” Justice Ruth Bader Ginsburg wrote for her court in the first Moore case.
Roberts dissented from Ginsburg’s opinion. Though Roberts agreed that the idiosyncratic standard used by the Texas criminal appeals court was “unacceptable,” he disagreed with the majority’s entire project of importing clinical standards into the law governing death sentences. “Clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment,” Roberts wrote. “Today’s opinion confuses those roles, and I respectfully dissent.”
After Moore prevailed in his first trip to the Supreme Court, the Texas Court of Criminal Appeals apparently decided that it wasn’t bound by the Supreme Court’s decision. On Tuesday, a majority of the high court reminded these Texas judges who is in charge. “We have found in [the Texas court’s latest] opinion too many instances in which, with small variations, it repeats the analysis we previously found wanting,” the Supreme Court announced Tuesday in an unsigned opinion. “And these same parts are critical to its ultimate conclusion.”
The most interesting aspect of the second Moore decision, however, is a brief concurring opinion by Chief Justice Roberts. “When this case was before us two years ago, I wrote in dissent that the majority’s articulation of how courts should enforce the requirements of Atkins v. Virginia lacked clarity,” Roberts begins. “It still does.”
Nevertheless, Roberts spends the bulk of his one-paragraph opinion reminding the Texas court that it cannot simply ignore pronouncements from its judicial superiors.
But putting aside the difficulties of applying Moore in other cases, it is easy to see that the Texas Court of Criminal Appeals misapplied it here. On remand, the court repeated the same errors that this Court previously condemned—if not quite in haec verba, certainly in substance. The court repeated its improper reliance on the factors articulated in Ex parte Briseno, and again emphasized Moore’s adaptive strengths rather than his deficits. That did not pass muster under this Court’s analysis last time. It still doesn’t.
Significantly, three of Roberts’ colleagues — Justice Samuel Alito, Justice Clarence Thomas, and Neil Gorsuch — joined a dissenting opinion arguing that the Texas court’s second attempt to clear a path for Moore’s execution should be allowed to stand. Roberts could have joined this opinion, and achieved an outcome similar to the one he sought in the first Moore case. Instead, he voted with his court’s liberal bloc.
So what should one make of Roberts’ actions here? As is also the case in the abortion decision Roberts joined earlier this month, the Chief probably hasn’t abandoned a lifetime of conservative views simply because he’s now the Supreme Court’s median justice. Indeed, on the very same day that Roberts halted the Louisiana law, the Chief also voted to let an Alabama man be executed without his spiritual adviser present — a decision that was widely criticized.
Liberals who are praying that Roberts will be reborn as a moderate swing justice should expect to be very disappointed.
But Roberts does care about the political legitimacy of his court. He cares about maintaining the appearance that judicial decisions are not driven entirely by politics. And he cares about the fact that there is only one Supreme Court of the United States — and it is not located in Texas.
Retired Justice Anthony Kennedy was the crucial fifth vote in the first Moore case, just as he was the fifth vote to keep the right to an abortion alive. When Kennedy was replaced with archconservative Brett Kavanaugh, nearly every informed observer of the Supreme Court expected its decisions to turn sharply to the right.
That outcome is still overwhelmingly likely. But Roberts has now signaled twice that he expects his court’s right turn to proceed through ordinary judicial channels — not through lower courts refusing to follow existing liberal precedents. He also appears to be signaling that conservative change won’t come all at once.
That’s not a good outcome for liberals, who can still expect the Supreme Court to continue a steady rightward march. But it is better than the outcome that judges like Thomas, Alito, or Gorsuch would prefer.